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REPORTS   OF   CASES 


IN  THE 


COTJRTOF    APPEALS 


MARYLAND. 


BY  RICHARD  W.  GILL, 


C  L  E  11  K     OF     THE     COURT     OF     APPEALS. 


VOL.  II, 

CONTAINING   CASES    IN   1844  & '45, 


ANNAPOLIS: 
GEO.    JOHNSTON,  PRINTER. 

1847. 


y 

\iu~L\ij 


3- 


ENTERED,  according  to  the  Act  of  Congress,  in  the  year  one  thousand  eight 
hundred  and  forty-seven,  by  RICHARD  W.  GILL,  in  the  Clerk's  office  of  the 
District  Court  of  Maryland. 


NAMES    OF   THE   JUDGES,    &c. 


DURING  THE  PERIOD  COMPRISED   IN  THIS   VOLUME. 


OF  THE  COURT  OF  APPEALS. 
Hon.  JOHN  BUCHANAN,  Chief  Judge. 
Hon.  STEVENSON  ARCHER,  Chief  Judge. 
Hon.  JOHN  STEPHEN,  Judge. 
Hon.  THOMAS  BEALE  DORSEY,  Judge. 
Hon.  E.  F.  CHAMBERS,  Judge. 
Hon.  ARA  SPENCE,  Judge. 
Hon.  WILLIAM  B.  STONE,  Judge. 
Hon,  SAMUEL  M.  SEMMES,  Judge. 
Hon.  ALEXANDER  C.  MAGRUDER,  Judge. 
Hon.  ROBERT  N.  MARTIN,  Judge. 

OF  THE  COURT  OF  CHANCERY. 

Hon.  THEODORICK  BLAND,  Chancellor. 

• 

OF  THE  COUNTY  COURTS. 

FIRST  JUDICIAL  DISTRICT — St,  Mary's,  Charles  and  Prince  George's  counties^ 
Hon.  JOHN  STEPHEN,  Chief  Judge. 
Hon.  WILLIAM  B.  STONE,  Chief  Judge. 
Hon.  ALEXANDER  C.  MAGRUDER,  Chief  Judge. 
Hon.  EDMUND  KEY,  Associate  Judge. 
Hon.  CLEMENT  DORSEY,      do. 

SKCOND  JUDICIAL  DISTRICT — Cecil,  Kent,  Queen  Anne  and  Talbot  counties. 
Hon.  E.  F.  CHAMBERS,  Chief  Judge. 
Hon.  PHILEMON  B.  HOPPER,  Associate  Judge. 
Hon.  JOHN  B.  ECCLESTON,  do. 


iv  NAMES  OP  JUDGES,  &c. 

THIRD  JUDICIAL  DISTRICT — Culvert,  Anne  Arundel,  Montgomery  and  Carroll 

counties. 

Hon.  THOMAS  BEALE  DORSEY,  Chief  Judge. 
Hon.  THOMAS  H.  WILKINSON,  Associate  Judge. 
Hon.  NICHOLAS  BREWER,  do. 

FOURTH  JUDICIAL  DISTRICT — Caroline,  Dorchester,  Somerset  and  Worcester 

counties. 

Hon.  ARA  SPENCE,  Chief  Judge. 

Hon.  WILLIAM  TINGLE,  Associate  Judge. 

Hon.  BRICE  J.  GOLDSBOROUGH,  do. 

FIFTH  JUDICIAL  DISTRICT — Frederick,  Washington  and  Allegany  counties. 

Hon.  JOHN  BUCHANAN,  Chief  Judge. 

Hon.  SAMUEL  M.  SEMMES,  Chief  Judge. 

Hon.  ROBERT  N.  MARTIN,  Chief  Judge, 

Hon.  RICHARD  H.  MARSHALL,  Associate  Judge. 

Hon.  THOMAS  BUCHANAN,  do. 

SIXTH  JUDICIAL  DISTRICT — Baltimore  and  Harford  counties. 
Hon.  STEVENSON  ARCHER,  Chief  Judge. 
Hon.  RICHARD  B.  MAGRUDER,  Associate  Judge. 
Hon.  JOHN  PURVIANCE,  Associate  Judge. 
Hon.  JOHN  C.  LE  GRAND,  Associate  Judge. 

OF  BALTIMORE  CITY  COURT. 
Hon.  NICHOLAS  BRICE,  Chief  Judge. 
Hon.  ALEXANDER  NISBET,  Associate  Judge. 
Hon.  W.  G.  D.  WORTHINGTON,          do. 

ATTORNEY  GENERAL. 
JOSIAH  BAYLEY,  Esquire. 


NAMES     OF     THE     CASES 

REPORTED  IN  THIS  VOLUME. 


Addison,  Edmund  B.,  vs.  Andrew  Hack,                               .               -  221 

Aldridge,  Andrew,  ex.  of  B.  D.  Higdon,  vs.  John  T.  Boswell,  -  37 
Alexander,  Ashton,  and  Sarah  Rogers  Alexander,  and  Margaret 

Walter,  et  al.,  lessee,  -  .204 

Baltimore  and  Susquehanna  Rail  Road  Company,  vs.  Tilghman  G. 

Compton  and  others,         -  20 

Barrell,  Samuel  B.,  vs.  James  Glover,  et  al.,         ...  171 
Bayless,  Zephaniah,  and  the  Philadelphia,  Wilmington  and  Baltimore 

Rail  Road  Company,             .                 .             .                 .  355 

Beall,  William  M .,  and  Theresa  McElfresh,  adm'r  of  John  H.  McEl- 

fresh,  vs.  George  Schley,  David  and  Christina  Barr,       -              -  181 
Bell,  Peter,  et  al.,  vs.  William  Webb  and  Peter  Mong,      .  163 
Belt,  Trueman,  and  Joseph  J,  Jones,             -             -                 .  106 
Bennington,  Jeremiah,  vs.  Samuel  Dinsmore,  adm'r  of  Samuel  Dins- 
more,               ......  348 

Benson,  Cephas  R.,  vs.  Richard  Boteler,         -                                  -  74 

Berry,  Z.,  and  wife,  and  Jonathan  Prout,               ...  147 

Berry,  W.  F.,  and  R.  W.  Brooke  and  wife,  and  others,  -  83 

Besore,  C.  H.,  and  S.  Etnyre,  and  Frederick  Byer,                                -  150 

Boswell.  John  T.,  and  Andrew  Aldridge,  ex.  of  B.  D.  Higdon,      -  37 

Boteler,  Richard,  and  Cephas  R.  Benson,  -  -  74 
Brooke,  Robert  W.,  and  Mary  Ann,  his  wife,  and  others,  \Ss,  William 

F,  Berry,              -  83 

Brown,  David,  and  John  H.  and  Margaret  Harlan,  .  475 
Burgess,  Thomas,  vs.  Arthur  Pue,  Jr.,  .  .  .11 
Burgess,  Thomas,  Collector  of  Primary  School  Tax,  Howard  District, 

vs.  Arthur  Pue,  Jr.,        -                                 ...  254 

Byer,  Frederick,  vs.  S.  Etnyre  and  C-  H.  Besore,  150 

Callan,  John  T.,  and  John  O.  W  barton ,  Abraham  Barnes  aud  Melchior 

B.  Mason,  -  .  .  -  173 

Charleston  Insurance  and  Trust  Company,  vs.  James  J.  and  Thomas 

Corner,  .  -  -  -  .410 


vi  NAMES  OF  CASES. 

Clarke,  Caleb,  and  Richard  W.,  Isaac  and  wife's  lessee,  .  1 
Compton,  Tilghman  G.,  and  others,  and  the  Baltimore  and  Susquo- 

hanna  Rail  Road  Company,  -  20 

Compton,  Barries,  us.  Wilson  Compton,  -  -  241 

Compton,  Wilson,  and  Barnes  Compton,  -  241 
Corner,  James  J.  and  Thomas,  and  the  Charleston  Insurance  and  Trust 

Company,  ...  410 

Crosby,  Joseph,  and  Nicholas  Phelan,  and  Robert  Bogue,  -  462 

Dawson,  F.  and  P.  T.,  and  the  Georgia  Insurance  and  Trust  Company,  365 
Dinsmore,  Samuel,  adm'r  of  Samuel  Dinsmore  and  Jeremiah  Ben- 

nington,  -  -  348 
Drakely,  Thomas,  and  M.  A.  Gist,  and  T.  P.  Scott,  adm'rs  of  William 

Gist,                                                                  -                -                -  330 

Frey,  Elizabeth,  and  James  M.  Hopkins  and  others,       -  359 

Georgia  Insurance  and  Trust  Company,  vs.  F.  Dawson,  and  P.  T. 

Dawson,  ...  -  865 
Gist,  M.  A.,  and  T.  P.  Scott,  adm'rs  of  William  Gist,  vs.  Thomas 

Drakely,  .  -  330 

Glenn,  John,  and  Beale  Randall,  .  430 

Glover,  James,  et  al.,  and  Samuel  B,  Barrell,  -  171 

Hack,  Andrew,  0s.  Edmund  B.  Addison,  -  .  221 
Hannon,  Walter  W.,  and  others,  vs.  The  State,  use  of  William  G. 

Robey  and  Grace  Ann,  his  wife,             -                                           -  42 

Harlan,  John  H.  and  Margaret,  vs.  David  Brown,           .  475 

Hardesty,  John  and  Matthew,  vs.  John  F.  Wilson,     -              -             -  481 

Henderson,  John  and  Gustavus,  vs.  William  E.  Mayhew  and  others,  393 

Hopkins,  James  M.,  and  others,  vs.  Elizabeth  Frey,                              -  359 

Hoye,  John,  vs.  Edward  Johnston,  .                                               -.   ..;  291 

Isaac,  Richard  W.,  and  wife's  lessee,  vs,  Caleb  Clarke,  1 

Johnston,  Edward,  vs.  John  Hoye,  .  291 
Jones,  C.  M.,  and  M.  C.,  survivors  of  Mary  E.  Ford,  and  the  State, 

use  of  J.  B.  Welch  and  wife,  49 

Jones,  Joseph  J.,  vs.  Trueman  Belt,  ...  -  106 
Jones,  Washington,  et.  al.,  vs.  William  Plater,  adm'r  of  John  R. 

Plater,                             .     .  .                               .  125 

Keller,  Thomas,  and  David  Ridenour,    -                               -  134 

Lawson,  John  B,,  John  Matthews   and  John  B.  Wills,  vs.  State,  use 

of  Creecy,  use  W.  A.  Moale,       -  .  -62 

Mayhew,  William  E.,  et  al.,  and  John  and  Gustavus  Henderson,  -  393 
Mayhew,  William  E.,  President  of  the  Farmers  and  Planters  Bank  of 

Baltimore,  and  the  State  of  Maryland,                           .                .  487 


NAMES  OF  CASES.  vii 

Mayor  and  City  Council  of  Baltimore,  vs.  Henry  White,  -  -  444 
Mitchell,  Sarah  E.,  vs.  Elizabeth  A.  Mitchell,  ex.  of  James  D. 

Mitchell,  .  .  .230 

Mitchell,  Elizabeth  A.,  ex.  of  James  D.  Mitchell  and  Sarah  E, 

Mitchell,      -  .230 

Parran,  John,  et  al.,  and  Robert  Welch,  of  Benjamin,  .  -  320 

Phelan,  Nicholas,  and  Robert  "Bogue,  vs.  Joseph  Crosby,  .  462 
Philadelphia,  Wilmington  and  Baltimore  Rail  Road  Company,  vs. 

Zephaniah  Bayless,  -  .  .  .  355 

Plater,  William,  adm'r  of  John  R.  Plater  and  Washington  Jones,  125 

Prout,  Jonathan,  et  al ,  vs.  Z.  Berry  and  wife,  -  147 

Pue,  Arthur,  Jr.,  and  Thomas  Burgess,-  -  -  -  11 
Pue,  Arthur,  Jr.,  and  Thomas  Burgess,  Collector  of  Primary  School 

Tax,  Howard  District,            -  254 

Randall,  Beale,  vs.  John  Glenn,  .  .  430 
Richardson,  Charles,  a.  d.  b.  n.  of  Robert  R.  Richardson.es.  the  State, 

use  of  Thomas  Rawlings,                                                                -  439 

Ridenour,  David,  et  al.,  vs.  Thomas  Keller,     -  134 

Rogers,  Charles,  and  Samuel  Marficld,  vs.  Thomas  Severson,              -  385 

Savage,  John,  and  Henry  Tiffany,  -  129 
Schley,  George,  David  and  Christina  Barr,  and  William  M.  Beall  and 

Theresa  McElfresh,  adm'r  of  John  H.  McElfresh,  •  -  181 

Seidenstricker,  John  B.,  vs.  the  State  of  Maryland,  -  -  374 

Severson,  Thomas,  and  Charles  Rogers  and  Samuel  Marfield,  -  -  385 
State,  use  of  William  G.  Robey  and  Grace  Ann,  his  wife,  and  W.  W. 

Hannon,  et  al.,  •  42 
State,  use  of  J.  B.  Welch  and  wife,  vs.  Caleb  M.  and  Mordecai  C.  Jones, 

survivors  of  Mary  E.  Ford,  -  49 
State,  use  of  James  R.  Creecy,  use  of  Win.  A,  Moale  and  John  B.  Law- 
son,  John  Matthews  and  John  B.  Wills,  -  62 
State,  use  of  John  Holton,  vs.  Garrett  Barke,  John  Dulaney  and 

Benedict  J.  Fenwick,  .  79 

State,  vs,  John  B.  Seidenstricker,  -  .  374 
State  of  Maryland,  vs.  William  E.  May  how,  President  of  the  Farmers 

and  Planters  Bank  of  Baltimore,  -  487 
State,  use  of  Thomas  Rawlings  and  Charles  Richardson,  a.  d.  b.  n,  of 

R.  R.  Richardson,        -                             -                -  439 

Tiffany,  Henry,  vs.  John  Savage,                                                           -  129 

Walter,  Margaret,  et  al.,  lessee,  vs.  Ashton  Alexander,  and    Sarah 

Rogers  Alexander,                               -                                              -  204 

Walter,  John,  use  of  Susanna  Walter,  vs.  Daniel  Warfield,  and  others,  216 
Warfiold,  Daniel,  and  others,  and  John  Walter,  use  of  Susanna 

Walter,                                                          -                               -  216 


viii  NAMES  OF  CASES. 

Webb,  William,  and  Peter  Mong,  and  Peter  Bell,  et  al.,          -  .       163 

Welch,  Robert,  of  Benjamin,  vs.  John  Parran,  et  al,,      -  .            320 
Wharton,  John  O.,  Abraham  Barnes  and  Melchior  B.  Mason,  vs.  John 

T.  Callan,  173 

White,  Henry,  and  the  Mayor  and  City  Council  of  Baltimore,  -      444 

Wilson,  John  F.,  and  John  and  Matthew  Hardesty,  -           481 


CASES 

ARGUED  AND   DETERMINED 


tti  O'HE 


COURT    OF    APPEALS 


OF 


JUNE  TERM,  1844. 

RICHARD  W.  ISAAC  AND  WIFE'S  LESSEE  vs.  CALEB  CLARKE. 
June,  1844. 

Where  it  appeared  that  the  defendant,  in  an  action  of  ejectment,  had  convey 
ed  his  lands  to  R,  who  had  died  intestate,  and  that  one  of  the  jurors  crm 
panneled  to  try  the  cause  was  his  brother  and  heir-at-law,  the  fact  of  the 
conveyance  being  unknown  to  the  plaintiff  when  the  jury  was  sworn,  the 
court  will  permit  the  juror  to  execute  a  deed  of  re-conveyance  and  release 
to  the  defendant,  for  the  purpose  of  restoring  his  competency. 

A  sale  of  land  made  by  a  sheriff,  under  execution,  to  his  own  agent,  is  not 
necessarily  void  at  law.  It  is  Voidable  for  fraud  in  fact. 

The  jury  alone  is  the  proper  tribunal  to  pronounce  on  the  fact  of  fraud  5  and 
the  circumstance  that  the  purchaser  is  an  agent  of  the  sheriff  will  be  re- 
garded  with  much  suspicion. 

A  plaintiff  in  ejectment  cannot  offer  in  evidence  a  record  of  the  proceedings 
upon  the  bill  of  the  defendant  in  Chancery  against  him,  which  bill  had 
been  dismissed  for  want  of  due  prosecution  upon  the  motion  of  the  plain  <= 
tiff,  for  the  purpose  of  precluding  the  defendant  from  questioning  the 
plaintiff's  title  at  law,  though  the  object  of  the  bill  was  to  vacate  such  title. 

A  bill  dismissed  under  a  rule  for  further  proceedings,  does  not  preclude  the 
complainant  from  using  any  defence  at  law  Which  he  might  otherwise 
have  used. 

The  general  rule  is  that  a  party  consenting  to  hold  as  lessee,  cannot  after« 
wards  deny  the  title  of  his  acknowledged  landlord. 
1         v.2 


CASES  IN  THE  COURT  OF  APPEALS 


Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 

There  are  exceptions  to  this  rule  ;  but  they  do  not  rest  on  the  fact  that  the 
acknowledgment  was  made  by  the  tenant  subsequent  to  his  coming  into 
possession,  or  that  he  originally  had  possession  under  another  title. 

The  circumstances  of  deception,  mistake,  or  other  grounds,  which  exempt  n 
tenant  from  the  influence  of  the  rule,  apply  as  well  to  the  case  of  admis- 
sions after  his  possession  commenced,  as  before. 

Where  a  party  is  in  possession,  and  enters  into  an  agreement  with  another 
claiming  the  land,  to  become  his  tenant,  ho  is  within  the  general  rule, 
which  forbids  the  tenant  from  questioning  the  landlord's  title.  A  relation 
thus  created  does  not,  per  se,  constitute  one  of  the  exceptions  to  that  rule. 

The  court  cannot  say  that  a  description  in  a  deed  for  land  is  too  vague,  and 
the  deed  void  for  uncertainty,  when  the  vagueness  and  uncertainty  are  not 
obvious  from  an  inspection  of  the  instrument. 

A  deed  capable  of  a  certain  location  is  sufficiently  certain  in  the  description 
to  pass  title. 

APPEAL  from  Prince  Georges  County  Court. 

This  was  an  action  of  ejectment,  commenced  on  the  25th 
March,  1835,  to  recover  all  those  tracts  of  land  called  "Bur- 
gess' Delight,"  "Clarke's  Fancy"  and  "Hickory  Thicket" 
The  date  of  the  demise  was  ]st  January,  1835.  The  tenant 
appeared,  pleaded  not  guilty,  and  took  defence  on  warrant. 

I  ST  EXCEPTION.  During  the  trial  of  this  cause,  after  the  jury 
were  empanneled,  and  before  the  case  was  argued  to  the  jury, 
and  before  the  several  bills  of  exceptions  taken  in  this  case 
were  signed  by  the  court,  it  was  discovered  for  the  first  time 
by  the  plaintiff's  counsel,  that  the  defendant,  Caleb  Clarke, 
had  conveyed  the  lands  in  controversy  to  a  certain  Richard 
Peach,  by  deed  bearing  date  the  13th  November,  1829,  and 
which  is  in  the  following  words,  to  wit,  &c. 

And  it  was  then  proved  that  Richard  Peach  was  dead  and 
intestate,  and  that  one  of  the  jurors,  to  wit,  Samuel  Peach,  was 
his  brother  and  heir-at-law,  and  as  such  had  an  interest  in  the 
result  of  the  suit,  and  it  was  contended  by  the  plaintiff's  coun- 
sel that  the  said  Samuel  Peach\\as  on  that  account  an  incom- 
petent juror  to  try  this  cause,  and  thereupon  the  plaintiff,  by 
his  counsel,  having  first  satisfied  the  court  that  said  deed  to 
Richard  Peach  was  unknown  to  them  or  the  plaintiff  when  the 
said  Samuel  was  sworn  as  a  juror,  prayed  the  court  to  with- 
draw the  said  juror,  and  to  have  a  new  jury  empanneled  to 


OF  MARYLAND. 


Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 


try  the  said  cause,  but  the  court  refused  said  application,  and 
permitted  the  said  Samuel  to  execute  a  deed  of  re-conveyance 
and  release  of  said  lands  to  Caleb  Clarke,  for  the  purpose  of 
restoring  his  competency  as  a  juror,  in  open  court,  as  follows, 
viz :  &c. 

And  directed  the  trial  of  the  said  cause  to  proceed  before 
the  said  jury  thus  etnpanneled;  to  which  opinion  of  the  court 
(STEPHEN,  C.  J.  and  DORSEY,  C.  J.)  and  their  refusal  to  per- 
mit said  juror  to  be  withdrawn,  the  plaintiff  excepted. 

SND  EXCEPTION.  At  the  trial  of  this  cause,  the  plaintiff  to 
maintain  the  issue  joined  on  his  part,  offered  in  evidence  to 
the  jury  the  locations  and  explanations  made  by  him  upon  the 
plats,  and  then  read  in  evidence  the  patents  of  Burgess'  De- 
light and  Hickory  Thicket)  anc'  proved  that  said  tracts  are 
properly  located  upon  the  plats,  and  that  all  those  parts  of 
said  tracts  which  are  included  in  the  lines  drawn  upon  the  plats 
shaded  yellow,  were  regularly  conveyed  by  divers  mesne  con- 
veyances to  one  Walter  S.  Clarke;  and  then  read  in  evidence 
the  record  of  a  judgment  recovered  by  William  Holmes  against 
the  said  Walter  S.  Clarke,  at  April  term,  1814,  of  this  court, 
and  the  record  of  a  fat  on  a  scire  facias  on  the  said  judgment 
of  April  term- 1814,  and  also  a  transcript  of  the  record  of  the 
Court  of  Appeals,  which  is  as  follows,  to  wit,  &c. 

This  was  the  record  of  a  fieri  facias  issued  upon  a  judg- 
ment recovered  by  William  Holmes  against  Walter  S.  Clarke, 
at  April  term,  1814,  revived  in  1821.  The  execution  bore 
date  the  5th  December,  1822,  and  was  followed  by  various 
writs  of  venditioni  exponas,  and  return  of  a  sale  on  the  17th 
June,  1826,  to  Francis  Belmear,  of  a  defined  parcel  of  the 
lands  mentioned  in  the  declaration  in  this  cause,  and  of  a  writ 
of  habere  facias  possessionem  awarded  to  said  F.  J3.,  which 
was  affirmed  upon  appeal. 

And  it  was  admitted  by  the  parties  that  the  aforesaid  judg- 
ments, rendered  in  Prince  George's  county  court,  in  favor  of 
said  Holmes,  are  correctly  recited  in  the  writs  of  executions 
contained  in  the  said  transcript  of  the  record  from  the  Court 
of  Appeals,  and  then  read  in  evidence  the  following  deed  from 


4  CASES  IN  THE  COURT  OF  APPEALS 

Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 

the  sheriff  who  made  the  sale  recited  in  the  said  transcript  to 
the  said  Belmear,  who  is  therein  returned  as  the  purchaser  of 
the  property,  which  deed  is  as  follows,  to  wit,  &c.  This  deed 
comprised  the  land  returned  as  sold. 

And  then  offered  and  read  in  evidence  a  deed  from  said 
Francis  Belmear,  the  purchaser  of  said  property,  to  Eliza 
Isaac,  one  of  the  lessors  of  the  plaintiff,  and  the  wife  of  Rich- 
ard W.  Isaac,  the  other  lessor,  and  proved  the  correctness  of 
the  location  of  said  title  papers,  as  made  upon  the  plats  by  the 
plaintiff. 

The  defendant  then  to  maintain  the  issue  on  his  part,  read 
to  the  jury  a  mortgage  deed  from  the  said  Walter  S.  Clarke 
to  the  defendant  and  one  John  Perkins,  dated  14th  August, 
1820,  conveying  the  said  lands.  Also  a  deed  from  Joshua  T. 
Clarke  to  the  defendant,  of  the  said  lands,  dated  the  2nd  Oc- 
tober, 1827,  and  from  Philip  Green  to  Joshua  T.  Clarke,  dated 
the  2nd  March,  1812,  and  proved  the  correctness  of  the  loca- 
tion of  said  deeds  upon  the  plats.  He  further  proved  that 
Walter  S.  Clarke,  the  defendant  in  the  said  judgment,  at  suit 
of  William  Holmes,  died  intestate,  sometime  in  the  year  1828 
or  1829,  without  issue,  leaving  a  widow  and  the  defendant  his 
brother,  and  several  other  brothers  and  sisters  his  heirs  at  law. 
And  the  defendant  then  called  several  witnesses,  by  whom  he 
proposed  to  prove,  that  at  the  sheriff's  sale  before  mentioned, 
R.  W,  Isaac,  one  of  the  lessors  of  the  plaintiff,  officiated  as 
the  deputy  ot  the  high  sheriff  of  the  county,  and  as  such  sold 
the  aforesaid  lands  to  the  said  Belmear,  And  he  further  offer- 
ed to  prove  various  declarations  and  assertions  made  by  the 
said  Belmear,  to  the  effect,  that  at  the  said  sale,  and  in  the 
purchase  of  said  property,  he  the  said  Belmear.  was  buying 
said  property  for  the  said  Isaac,  and  as  his  agent ;  and  also 
offered  evidence  of  similar  declarations  made  by  said  Isaac. 

And  after  the  plaintiff  had  offered  evidence,  going  to  rebut 
the  effect  of  the  evidence  thus  offered  by  the  defendant,  the 
plaintiff  by  his  counsel  prayed  the  opinion  of  the  court,  and 
their  instruction  to  the  jury,  that  even  though  the  jury  might 
be  of  opinion,  from  the  evidence,  that  the  saiu  Belmear,  in 


OF  MARYLAND. 


Isaac  and  wife's  lessee  vs,  Clarke. — 1844. 


purchasing  said  land,  acted  as  the  agent  of  said  Isaac,  and 
bought  for  him,  yet  still  in  this  court,  such  facts  constitute  no 
defence  in  the  present  action,  and  the  remedy  of  the  parties, 
for  a  sale  under  such  circumstances,  is  only  in  a  court  of  equity. 
But  the  court  (C.  DORSEY,  A.  J.)  refused  the  prayer  thus  made 
by  the  plaintiff,  being  of  opinion,  and  so  directing  the  jury, 
that  if  they  should  find  from  the  evidence,  that  Belmear,  in 
making  said  purchase,  acted  as  agent  of  said  Isaac,  and 
bought  for  him,  and  that  the  said  Clarke  is  one  of  the  heirs  of 
said  Walter  S.  Clarke,  the  sale  is  void,  and  is  a  good  defence 
to  the  present  action.  To  this  refusal  to  give  the  instruction 
as  prayed  by  the  plaintiff,  and  to  the  instruction  as  given,  the 
plaintiff  excepted. 

SRD  EXCEPTION.  After  the  evidence  in  the  previous  ex- 
ceptions, which  by  agreement  constitute  parts  of  this  excep- 
ception,  the  plaintiff  further  to  maintain  the  issue  joined  upon 
his  part,  offered  to  read  to  the  jury  the  following  transcript  of 
a  record  from  the  Court  of  Chancery,  for  the  purpose  of  laying 
before  the  jury  the  statements  contained  in  the  bill  and  answers, 
and  for  the  further  purpose  of  showing  that  a  court  of  compe- 
tent jurisdiction  had  dismissed  a  bill  filed  by  the  present  de- 
fendant against  one  of  the  present  plaintiffs  and  F.  Belmear, 
impeaching  the  validity  of  the  sale  relied  upon  by  the  plaintiffs 
in  support  of  their  title  to  the  land  for  which  the  present  ac- 
tion is  brought,  and  that  consequently  the  defendant  cannot 
now  question  that  title. 

The  object  of  the  bill  filed  by  Caleb  Clarke,  on  the  12th 
April,  1827,  against  Richard  W.  Isaac  and  Francis  Belmear, 
was  to  impeach  the  sale  made  by  Isaac,  under  the  writ  of 
venditioni  exponas  mentioned  in  the  bills  of  exceptions,  and  to 
restrain  them  by  injunction,  &c.  The  defendants  answered 
the  bill,  and  at  July  term,  1827,  the  complainant  was  laid  un- 
der a  rule  to  take  further  proceedings  on  or  before  the  fourth 
day  of  the  next  term  of  the  Court  of  Chancery,  and  at  the  fol- 
lowing term  the  bill  was  dismissed  by  the  Chancellor,  undtn 
that  rule,  with  costs  to  the  defendant. 


CASES  IN  THE  COURT  OF  AiVEALS 


Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 


But  the  court  upon  the  objection  of  the  defendant's  counsel 
refused  to  permit  the  answers  in  the  said  record  to  be  read  to 
the  jury,  and  were  of  opinion  that  the  dismissal  of  the  bill  in 
the  record  contained,  in  the  manner  in  which  the  same  was 
dismissed,  did  not  prevent  the  complainant  there,  who  is  the 
defendant  here,  fiom  contesting  the  validity  of  said  sale.  To 
which  refusal  to  suffer  the  said  record  to  be  read  to  the  jury 
for  the  purpose  aforesaid,  and  to  the  opinion  of  the  court  so 
given,  the  plaintiff  excepted. 

4xH  EXCEPTION.  After  the  evidence  contained  in  the  pre- 
ceding bills  of  exception,  and  which  by  agreement  is  made  a 
part  of  this  exception,  the  plaintiff  further  to  maintain  the 
issue  joined  on  his  part,  proved  to  the  jury  that  the  mortgage 
from  W.  S.  Clarke  to  the  defendant  and  John  Perkins,  of  the 
14th  of  August,  1820,  was  given  without  consideration,  and 
then  proved  that  after  the  affirmance  of  the  judgment  of  the 
Court  of  Appeals,  at  June  term,  1829,  the  transcript  of  the 
record  of  which  is  set  forth  in  the  plaintiff's  second  exception, 
a  writ  of  habere  facias  possessionem  issued,  returnable  to  the 
December  term,  1829,  of  that  court,  which  was  returned  "not 
executed."  That  another  similar  writ  issued  to  June  term, 
1830,  of  that  court,  which  was  also  returned  "unexecuted." 
And  thereafter,  laying  the  proper  foundation  for  that  purpose, 
and  for  the  purpose  of  proving  that  said  Walter  S.  Clarke  had, 
after  the  affirmance  of  the  said  judgment  by  the  Court  of  Ap- 
peals, become  the  tenant  of  the  said  Belmear,  offered  to  prove 
by  a  competent  witness  that  some  time  in  the  year  1830,  the 
said  Belmear  called  upon  the  witness,  and  showed  him  a  pa- 
per signed  by  the  said  W.  S.  Clarke,  and  dated,  as  he  thinks, 
in  1830,  in  which  the  said  Clarke  acknowledged  himself  to  be 
in  possession  of  said  land,  as  the  tenant  of  said  Belmear,  and 
agreed  to  pay  him  a  rent  for  the  use  of  land  ;  and  thereupon 
the  plaintiff  prayed  the  court  to  instruct  the  jury,  that  if  they 
find  from  the  evidence  that  the  deed  of  mortgage  from  W.  S. 
Clarke  to  the  defendant  and  John  Perkins,  of  June,  1820,  was 
given  without  consideration,  that  it  passed  no  title  to  the  mort- 
gagees, and  the  title  to  the  property  therein  mentioned,  not- 


OF  MARYLAND. 


Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 


withstanding  such  mortgage,  remained  in  the  mortgagor,  W. 
S.  Clarke;  of  which  opinion  the  court  was.  And  the  plaintiff 
prayed  the  court  to  instruct  the  jury,  if  they  further  find  that 
after  the  sale  by  the  sheriff  to  Francis  Belmear,  and  the  pay- 
ment of  the  purchase  money  by  him,  if  they  find  such  pay- 
ment and  sale  were  in  fact  made,  the  said  W.  S.  Clarke  ac- 
knowledged himself  in  writing  to  be  the  tenant  of  the  said 
Belmear,  and  agreed  to  pay  him  rent  for  the  said  land,  then 
neither  the  said  Clarke,  nor  any  one  claiming  under  him  by 
title  subsequent  to  the  sale  to  said  Belmear,  can  dispute  his 
title  to  said  land.  But  the  court  was  of  opinion,  and  so  in- 
structed the  jury,  that  if  the  jury  shall  find  from  the  evidence, 
the  said  Clarke  was  in  possession  of  the  said  land  at  the  time 
when  the  said  contract  and  agreement  was  alleged  to  have  been 
entered  into,  and  that  he  did  not  originally  enter  thereon  as 
tenant  to  the  said  Belmear,  that  then  such  agreement  does  not 
prevent  the  defendant  from  contesting  the  title  of  the  lessors 
of  the  plaintiff,  To  which  refusal  of  the  court  to  give  the  in- 
struction as  prayed  by  the  plaintiff,  and  to  the  instruction  as 
given  by  the  court,  the  plaintiff  excepted. 

STH  EXCEPTION.  After  the  evidence  in  the  preceding  ex- 
ceptions, which  by  agreement  is  made  a  part  of  this  excep- 
tion, and  when  the  plaintiff  was  about  reading  to  the  jury  the 
following  deed  from  Joshua  T.  Clarke  to  said  Walter  S.  Clarke, 
of  the  17th  of  September,  1813,  which  is  as  follows,  to  wit : 

This  indenture,  made  this  17th  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirteen, 
between  Joshua  T.  Clarke,  of  Prince  George"1 's  county,  and 
State  of  Maryland,  of  the  one  part,  and  Walter  S.  Clarke,  of 
the  county  and  State  aforesaid,  of  the  other  part,  witnesseth, 
that  the  said  Joshua  T.  Clarke,  &c.,  hath  granted,  &c.,  unto  the 
said  Walter  S.  Clarke,  his,  &c.,  part  of  a  tract  of  land  called 
Burgess*  Delight,  part  of  a  tract  of  land  called  Hickory  Thicket, 
and  part  of  a  tract  of  land  called  Clarke's  Fancy,  beginning 
at  or  near  a  stone  near  the  main  road  that  leads  to  the  mill 
now  occupied  by  Jacob  Wheeler,  thence  a  southerly  course,  so 
as  to  include  the  dwelling  house  lately  occupied  by  Philip 


8  CASES  IN  THE  COURT  OF  APPEALS 

Isaac  and  wife  'slessee  PS.  Clarke. — 1844. 

Green,  and  the  orchard  contiguous  thereto,  bounding  on  the 
south  with  a  line  drawn  easterly  to  Patuxent  river,  thence 
bounding  on  and  with  said  river  to  the  extent  of  the  said  land, 
on  the  north  with  the  said  land  to  the  beginning,  so  as  to  in- 
clude two  hundred  acres  of  land,  more  or  less,  on  the  east  side 
of  said  southerly  line  from  the  beginning,  together  with  all,  &c. 
The  defendant,  by  his  counsel,  prayed  the  court  to  instruct 
the  jury,  that  no  title  could  be  derived  to  the  grantee  in  the 
said  deed,  because  the  description  of  the  property  therein  con- 
tained was  too  vague,  and  that  said  deed  was  void  for  uncer- 
tainty; and  the  court  being  of  opinion  that  said  deed  is  void 
for  uncertainty,  refused  to  suffer  the  plaintiff  to  read  the  same 
in  support  of  his  claim  and  pretensions.  To  which  opinion 
and  refusal  of  the  court  to  suffer  the  said  deed  to  be  read,  the 
plaintiff  excepted. 

GTH  EXCEPTION.  At  the  trial  of  this  cause,  and  after  the 
giving  the  evidence  contained  in  the  preceding  bills  of  ex- 
ceptions, and  which  is  agreed  to  be  incorporated  and  made  a 
part  of  this  exception,  the  plaintiff,  by  his  counsel,  upon  said 
evidence,  prayed  the  court  to  instruct  the  jury,  that  if  they 
believed  from  the  evidence  that  the  mortgage  from  Walter  S. 
Clarke  to  Caleb  Clarice  and  John  Perkins,  was  executed  with- 
out any  consideration  being  paid  for  the  same,  by  the  grantees 
therein,  that  then  the  said  mortgage  was  fraudulent  and  void, 
as  against  the  creditors  of  said  Walter  S.  Clarke,  and  that  if  the 
jury  further  find  from  the  evidence,  that  some  time  after  the 
sale  of  said  land  to  Belmear,  under  the  judgment  of  Holmes , 
by  the  deputy  sheriff  of  Prince  George's  county,  if  the  jury 
further  find  from  the  evidence,  that  sometime  after  the  sale  of 
said  land  to  Belmear,  under  the  judgment  of  Holmes,  by  the 
deputy  sheriff  of  Prince  George^  county,  if  the  jury  should 
find  such  sale  to  have  been  raadej  the  said  Walter  S.  Clarke, 
with  a  knowledge  of  the  circumstances  under  which  the  sale 
was  made,  acknowledged  himself  in  writing  to  be  the  tenant 
of  said  land  of  said  Belmear,  and  agreed  to  pay  him  a  rent  for 
the  same,  that  then  said  written  agreement,  if  the  jury  finds 
the  existence  of  the  same  as  aforesaid,  is  evidence  to  the  jury 


OF  MARYLAND. 


Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 


that  the  said  Walter  S.  Clarke  acquiesced  in  the  said  sale,  and 
the  regularity  or  validity  of  the  same  cannot  be  impeached  by 
any  person  claiming  title  to  said  land  under  said  Walter  S. 
Clarke,  and  who  entered  in  possession  under  said  title  after 
the  date  of  said  written  contract  for  rent.  But  the  court  re- 
fused to  grant  the  said  prayer  and  instruction  to  the  jury  ;  from 
which  refusal  to  grant  said  instruction  to  the  jury,  the  plaintiffs 
excepted. 

The  verdict  and  judgment  being  against  the  plaintiffs,  they 
prosecuted  the  present  appeal. 

The  cause  was  argued  before  BUCHANAN,  C.  J.,  ARCHER, 
DORSEY,  CHAMBERS  and  SPENCE,  J. 

By  J.  JOHNSON  and  T.  S.  ALEXANDER,  for  the  Appellant. 

Who  cited  on  the  question  of  restoring  the  jurors  competency 
6  Wendel  389, 3  Chit.  G.  P.  795,  3  Harr.  $  McHenry,  101. 

On  the  question  of  sale  by  sheriff  to  his  agent,  4  Gillfy  J. 
376,  4  Ran.  Va.  Rep.  199. 

On  the  relation  of  landlord  and  tenant,  1  Cain.  JV*.  Y.  Rep. 
444,  7  John.  Rep.  186,  3  John.  223,  10  John.  301,  6  Law 
Lib.  293,  Comyn  on  L.  %  T.  519,  7  Term  Rep.  488,  10  East 
350,  12  John.  427,  37  E.  C.  L.  Rep.  93,  15  Ib.  267. 

Effect  of  sale  under  judicial  process  as  against  the  defen- 
dant, and  those  in  under  him.  3  Cain.  188,  1  Wendel,  418, 
10  John.  224. 

The  statement  of  a  fact  by  a  judge  in  the  progress  of  a 
cause  will  be  taken  as  true,  6  H .  #  J-  407,  9  G.  $  /.  71. 

Error  in  the  description  of  land,  1  G.  fy  J.  443. 

Effect  of  dismissal  of  bill  in  chancery,  2  H.  &  G.  374. 

By  C.  C.  MAGRUDER  and  A.  C.  MAGRUDER,  for  Appellee. 

In  relation  to  the  competency  of  the  juror,  cited  3  Bnc. 
Jury  764,  Let.  £.,21  Viner  M.,  274  Trials,  8  Barn.  $  Cres. 

The  sheriff's  sale  to  himself  a  nullity,  void,  Story  on  Agen. 
30,  31, 198,  199,  2  Camp.  203,  5  Barn,  ^  Aid.  333,  7  E.  C. 
L.  120,  3  John.  Cas.  29,  4  Cowenlll,  7  John.  252,  16  John. 
197,  3  Bacon  605,  1  J.  C.  R*.  140. 
2         v.2 


10  CASES  IN  THE  COURT  OF  APPEALS 

Isaac  and  wife's  lessee  vs.  Clarke. — 1844. 


A  defendant  in  ejectment  may  show  fraud  or  collusion  be- 
tween sheriff  and  purchaser,  and  hence  the  plaintiff,  purchaser, 
has  no  title.  4  Harr.  Sf  McH.  398,  5  Har.  &  J.  54,  7  G.  Sf  J.  494, 
2  Cow.  Phil.  62,  6  Taun.  202,  7  Wendell  401,  9  E.  C.  L.  294. 

Deed  void  for  uncertainty,  10  G.  $' J.  7. 

Effect  of  bill  dismissed,  UG.fyJ.  173,  1  Sto.  Eg.  PL  610. 

CHAMBERS,  J.,  delivered  the  opinion  of  this  court. 

Under  the  peculiar  circumstances  of  this  case,  the  compe- 
tency of  the  juror  was  restored  by  his  conveyance  of  all  his 
interest  in  the  property  in  contest.  In  this  opinion,  however, 
the  court  is  not  unanimous.  The  first  exception  is  therefore 
affirmed. 

We  think  the  instruction  given  in  the  second  exception  was 
erroneous.  A  sale  made  by  a  sheriff  to  his  own  agent  is  not 
necessarily  void  at  law,  but  voidable  for  fraud  in  fact.  The 
jury  alone  is  the  proper  tribunal  to  pronounce  upon  the  fact  of 
fraud,  and  the  circumstance  that  the  purchaser  is  an  agent  of 
the  sheriff  will  be  properly  regarded  with  much  suspicion. 

The  opinion  expressed  in  the  third  exception  is  entirely  ap- 
proved. Such  a  proceeding  in  Chancery  as  the  appellant  of- 
fered could  not,  upon  any  received  principle,  preclude  the  ap- 
pellee from  using  any  defence  at  law  which  could  otherwise 
be  urged. 

We  think  the  court  below  erred  in  the  opinions  contained  in 
the  fourth  and  sixth  exceptions.  The  general  rule  is  that  a 
party  consenting  to  hold  as  lessee  cannot  afterwards  deny  the 
title  of  his  acknowledged  landlord.  There  are  exceptions  to 
this  rule ;  but  they  do  not  rest  on  the  fact,  that  the  acknow- 
ledgement was  made  by  the  tenant  subsequent  to  his  coming 
into  possession,  or  that  he  originally  had  possession  under  an- 
other title.  The  circumstances  of  deception,  mistake,  or  other 
grounds  which  exempt  a  tenant  from  the  influence  of  the  rule, 
apply  as  well  to  the  case  of  admissions  after  his  possession,  as 
before. 

We  cannot  concur  with  the  County  Court  in  the  opinion 
given  in  the  fifth  exception.  After  an  attentive  consideration 


OF  MARYLAND.  11 


Burgess  vs.  Puo. — 1844. 


of  the  deed,  \ve  cannot  perceive  on  its  face  the  obvious  uncer- 
tainty and  vagueness  which  must  make  it  impossible  to  locate 
it.  On  the  contrary,  it  appears  to  us,  looking,  as  we  must  do, 
to  the  face  of  the  deed,  to  be  quite  capable  of  a  certain  loca- 
tion, according  to  the  metes  and  bounds  expressed;  and  a  deed 
capable  of  a  certain  location  is,  for  that  reason,  sufficiently 
certain  to  pass  the  title. 

Differing  with  the  court  below  in  the  second,  fourth,  fifth, 
sixth  exceptions,  we  must  reverse  the  judgment,  with  costs  to 
appellant,  and  issue  procedendo. 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 

ARCHER  and  CHAMBERS,  J.,  dissented  on  the  first  excep- 
tion. 


THOMAS  BURGESS  vs.  ARTHUR  PUE,  JR. — June  1844. 

By  the  act  of  1828,  ch.  169,  sec.  5,  mere  formal  objections  to  the  legality  of 
the  pioceedings  of  the  meeting  of  the  inhabitants  or  trustees  of  any  school 
district  for  the  public  instruction  of  youth  in  primary  schools,  or  irregu- 
larity therein,  are  to  be  disregarded. 

By  the  act  of  1825,  ch.  162,  sec.  8,  the  collector  of  the  school  tax  is  to  be 
appointed  by  the  taxable  inhabitants  of  the  district,  and  by  the  llth  sec- 
tion he  is  required  to  give  bond,  with  security,  to  the  satisfaction  of  the 
trustees,  for  the  faithful  discharge  of  his  official  duties.  The  election  to 
be  valid  must  be  made  by  the  taxable  inhabitants. 

The  act  of  1839,  ch.  90,  makes  no  change  in  the  power  of  appointing  such 
a  collector. 

A  collector  of  taxes  not  selected  by  competent  authority,  although  he  gives 
bond  for  the  discharge  of  his  duties,  has  no  legal  warrant  to  act,  and  all 
his  proceedings  are  tortious  and  unlawful. 

The  legislature  may  delegate  the  power  of  taxation  to  the  taxable  inhabi- 
tants, for  the  purpose  of  raising  a  fund  for  the  diffusion  of  knowledge  and 
the  support  of  primary  schools,  within  their  respective  school  districts. 

Grants  of  similar  powers  to  other  bodies,  for  political  purposes,  have  been  co. 
evil  with  the  Constitution  itself,  and  no  serious  doubts  have  ever  been  en- 
tertained of  their  validity. 

APPEAL  from  Howard  District  Court. 
This  was  an  action  of  Replevin,  commenced  on  the  8th  Feb- 
ruary, 1843,  on  the  following  warrant: 


CASES  IN  THE  COURT  OF  APPKALS 


Burgess  vs.  Pue. — 1844. 


HOWARD  DISTRICT  OF  ANNE  ARUNDEL  COUNTY,  to  wit  : 
Whereas,  on  the  sixth  day  of  February,  eighteen  hundred  and 
forty-three,  instant,  before  the  subscriber,  one  of  the  justices  of 
the  peace  of  the  State  of  Mar)  land,  in  and  for  the  said  district, 
Arthur  Pue,  jr.,  of  the  said  district,  made  oath,  that  one  yoke 
of  pied  oxen,  belonging  to  him,  have  been  illegally  and  un- 
justly seized  in  execution  for  school  taxes,  for  district  No.  30, 
by  Thomas  Burgess,  the'collector,  which  affidavit  is  hereto  an- 
nexed, whereby  it  appears  to  me  that  it  is  necessary  for  the 
purposes  of  justice,  that  a  replevin  should  issue  ;  you  are  here- 
by empowered  and  directed  to  issue  a  replevin  for  the  follow- 
ing chattels,  taken  as  aforesaid,  to  wit,  one  yoke  of  "  pied 
oxen,"  and  this  shall  be  )our  warrant  for  the  same.  Witness 
my  hand  and  seal,  this  sixth  day  of  February,  1843. 

JOHN  FORREST,  (Seal.) 

HOWARD  DISTRICT  OF  ANNE  ARUNDEL  COUNTY,  to  wit  : 
Be  it  remembered,  that  on  this  sixth  day  of  February,  eighteen 
hundred  and  forty-three,  before  me,  the  subscriber,  one  of  the 
justices  of  the  peace  of  the  State  of  Maryland,  in  and  for  said 
district,  personally  appeared  Arthur  Pue,  jr.,  of  the  said  dis- 
trict, and  made  oath  on  the  Holy  Evangely  of  Almighty  God, 
that  a  yoke  of  pied  oxen  have  been  illegally  and  unjustly  sei- 
zed by  the  collector,  Thomas  Burgess,  for  school  taxes,  for  pri- 
mary school  district  No.  30,  of  said  district. 

Sworn  before,  JOHN  FORREST,  £  Seal.) 

To  John  L.  Moore,  clerk  of  Howard  District  of*/?.  JJ.  county. 

The  appellee  having  filed  a  replevin  bond,  the  writ  issued, 
and  the  goods  so  taken  were  replevied  and  delivered  to  the 
appellee,  who  filed  his  declaration  claiming  the  same. 

The  case  was  then  submitted  on  the  following  statement  of 
facts  : 

Under  the  provisions  of  the  act  ior  the  public  instruction  of 
youth  in  primary  schools  throughout  the  State,  and  the  several 
supplements  thereto,  Anne  Arundel  county  was  divided  into 
primary  school  districts  ;  the  locus  in  quo  constitutes  part  of 
primary  school  district  No.  30,  of  said  county,  in  that  division. 

In  the  year  1832,  a  primary  school  was  organized  in  said 
school  district,  and  has  ever  since  been  kept  up  in  fact.  ' 


OK  MARYLAND. 


Burgess  ca.  I'ue. — 1844. 


The  regularity  and  legality  of  such  organization  and  con- 
tinuance, are  denied  by  the  plaintiff,  but  affirmed  by  the  de- 
fendant. 

At  an  annual  meeting  of  taxables  of  the  district,  held  in  the 
district  in  July,  1842,  certain  proceedings  were  held,  of  which 
the  following  is  a  copy  : 

"  July  30,.  1842.  The  twelfth  annual  meeting  of  the  taxa- 
ble inhabitants  of  primary  school  district  No.  30,  Howard  Dis- 
trict, Jl.  Jl.  county,  convened,  and  on  motion,  George  Ellicott 
was  called  to  the  chair,  and  McLane  Brown  appointed  secre- 
tary. On  motion,  the  secretary  read  the  trustees'  annual  re- 
port. Mr.  Ijams  moved  the  adoption  of  said  report ;  deter- 
mined in  the  affirmative.  McLane  Brown  moved  a  levy  of  eight 
cents  on  the  $100.  C.  S.  W.  Dorsey  moved  as  a  substitute, 
four  cents  ;  determined  in  the  negative.  The  vote  was  then 
taken  on  McLane  Brown's  motion,  and  determined  in  the  af- 
firmative. Mr.  Wright  nominated  George  L.  Stockett,  J.  P. 
Ijams  and  George  Ellicott,  as  trustees  for  the  ensuing  year. 
Henry  H.  Pue  nominated  Lcvi  Chaney,  William  Smith,  and 
Anthony  Smith.  The  question  was  then  taken  on  the  nomi- 
nation of  George  L.  Stockett,  unanimously  elected  ;  J.  P.  Ijams 
and  George  Ellicott,  unanimously  elected.  Ijams  nominated 
George  L.  Stockett,  as  clerk — elected  unanimously.  On  mo- 
tion, C.  S.  W.  Dorsey,  resolved,  that  the  trustees  report  to  the 
next  annual  meeting  the  number  and  names  of  the  children  at- 
tending school,  and  who  pay  capitation  tax,  and  the  time  of 
their  attendance. 

On  motion  of  A.  Smith,  the  meeting  adjurned  to  meet  the 
last  Saturday  of  July,  1843,  at  10  o'clock  A.  M. 

Signed,  McLane  Brown,  Sec'ry.      GEO.  ELLICOTT,  Ch'n. 

A  true  copy  :  George  L.  Stockett,  Clerk." 

That  the  trustees  were  elected  viva  voce,and  not  by  ballot, the 
plaintiff  being  then  present  and  voting  ;  that  the  said  meeting 
was  held  after  due  notice  thereof;  that  after  the  adjournment 
of  the  meeting,  the  trustees  placed  in  the  hands  of  defendant, 
on  the  12th  December,  1842,  who  was  at  that  time  sheriff  and 
collector  of  Howard  District,  a  list  of  the  taxables  and  pro- 


14  CASES  IN  THE  COURT  OF  APPEALS 


Burgess  vs.  Puo. — 1844. 


perty  liable  to  taxation  of  said  District,  with  a  warrant  lor  col- 
lection thereof,  as  follows  : 

"Copy 'of  tax  list  for  primary  school  district  No.  30,  Howard 

District,  A.  Jl.  county. — 1842. 

1  Brown,  McLane,  -  $1.71^,  &c. 

HOWARD  DISTRICT  OF  A.  A.  COUNTY,  to  wit:  To  Thomas 
Burgess,  collector  of  Howard  District,  A.  A.  county,  greeting: 
You  are  hereby  required  and  commanded,  to  collect  from  each 
of  the  inhabitants  of  said  district,  the  several  sums  of  money 
written  opposite  to  the  name  of  each  of  said  inhabitants  in  the 
annexed  tax  list,  and  within  sixty  days  after  receiving  this  war- 
rant, to  pay  the  amount  of  the  monies  by  you  collected,  in'.o  the 
hands  of  the  trustees  of  said  district,  or  some  one  of  them, 
and  take  their  or  his  leceipt  therefor,  and  if  any  of  said  inhab- 
itants shall  neglect  or  refuse  to  pay  the  same,  you  are  hereby 
further  commanded  to  levy  on  the  goods  and  chattels  of  each 
delinquent,  and  make  sale  thereof  according  to  law.  Given 
under  our  hands  and  seals,  this  12th  day  of  December,  1843. 
GEO.  L.  STOCKETT,  (Seal.) 
J.  P.  IJAMS,  (Seal.) 

GEO.  ELLICOTT,  (Seal.)  Trustees." 
That  the  defendant,  at  the  time  of  receiving  such  list,  gave 
bond  in  proper  form  for  collection  of  said  taxes  ;  that  he  never 
was  elected,  selected  or  appointed  collector  by  the  taxables  of 
school  district  No.  30,  of  Howard  District,  but  was  selected 
and  elected  by  the  trustees  ;  that  the  clerk  elected  as  aforesaid, 
did  not  give  bond  as  such,  as  required  bylaw ;  that  the  plain- 
tiff, in  July,  1842,  was  and  ever  since  has  been  a  taxable  in- 
habitant of  said  district,  and  named  in  said  tax  list,  and  be- 
cause of  his  failure  to  pay  the  said  taxes,  assessed  against  him 
as  aforesaid,  the  defendant,  as  collector  as  aforesaid,  levied  on 
and  took  in  execution  the  property  in  the  declaration  mention- 
ed, for  the  purpose  of  raising  the  tax,  so  assessed  against 
the  plaintiff.  The  original  act,  for  the  public  instruction  of 
youth  in  primary  schools  throughout  this  State,  and  the  sup- 
plements thereto,  and  all  other  acts  applicable  to  primary 
schools  in  Anne  Arundel  county  and  Howard  District,  shall  be 


OF  MARYLAND.  15 


Burgess  vs.  Pue. — 1844. 


treated   as   part  of  this  statement,  and   read  from  the  printed 
books. 

It  is  insisted  by  the  plaintiff,  that  no  evidence  out  of  the  re- 
cord book  of  the  proceedings  of  taxables,  is  admissible  to 
shew  that  notice  of  the  meeting  as  aforesaid  was  given,  and 
the  admission  herein,  that  such  notice  was  in  fact  given,  is 
made  subject  to  such  exceptions. 

On  the  part  of  the  defendant  it  is  objected,  that  no  evidence 
out  of  said  record,  is  admissible  for  the  purpose  of  shewing 
that  the  said  meeting  was  illegally  or  irregularly  held,  or  con- 
ducted with  a  view  of  charging  him  in  this  action  ;  that  all 
admissions  of  facts  by  him,  not  shewn  by  said  record  book, 
are  to  be  taken,  as  made  subject  to  such  objection  ;  that  the 
act,  entitled,  an  act  to  provide  for  the  public  instruction  of 
youth  in  primary  schools,  throughout  this  State,  is  unconsti- 
tutional and  void,  because  the  validity  and  operation  of  the 
same,  in  any  county  of  the  State,  was  dependent  on  the  votes 
of  a  majority  of  the  voters  of  each  county,  and  if  the  majority 
of  the  said  voters  of  any  county  should  be  in  favor  of  the  es- 
tablishment of  primary  schools,  as  is  therein  provided  for,  then 
and  in  that  case  the  said  act  should  be  valid  for  such  county 
or  counties,  otherwise  of  no  effect  whatever,  and  if  a  majority 
of  the  voters  of  any  county  in  this  State  should  be  against  the 
establishment  of  primary  schools,  as  established  by  this  act, 
then  in  that  case  the  said  act  should  be  void  as  to  that  county  ; 
that  the  act  aforesaid,  and  the  act  entitled  an  act  to  provide 
for  the  public  instruction  of  youth  in  primary  schools  in  Jinne. 
Arundel  county,  are  unconstitutional  and  void,  as  far  as  the  said 
acts  authorise  one  or  more  of  the  taxable  inhabitants  of  any 
school  district  in  Jinne  Jlrundel  county,  to  vote  a  tax  on  the 
assessable  property  of  said  district,  to  build  school  houses, 
furnish  them  with  the  necessary  fuel,  books,  stationary  and 
appendages,  and  for  payment  of  the  salary  of  a  teacher  in  said 
district ;  that  the  act,  entitled,  an  act  regulating  the  manner  of 
levying  on  the  assessable  property  in  Jinne  Arundel  county, 
for  the  support  of  primary  schools  in  said  county,  passed  the 
14th  February,  1830,  is  unconstitutional  and  void,  as  lar  as  it 


1C  CASES  IN  THE  (JUUKT  OK  APPEALS 

Burgess  vs.  Pue. — 1844. 


authorises  the  trustees  of  any  primary  school  district  in  Jlnne 
Jlrundel  county,  to  require  from  any  child  attending  school  the 
payment  of  any  sum  of  money  not  exceeding  twenty-five  cents 
a  month,  to  be  applied  to  the  payment  of  the  expenses  of  the 
school ;  that  the  above  acts  of  Assembly,  are  in  other  respects, 
contrary  to  the  Bill  of  Rights  and  Constitution  of  this  State, 
and  therefore  null  and  void  : 

1st.  Because  said  acts  destroy  all  accountability  for  the  pow- 
er of  taxation,  contrary  to  the  fourth  section  of  the  Bill  of 
Rights. 

2nd.  Because  the  arts  aforesaid  impose  taxes  without  the 
consent  of  the  Legislature,  contrary  to  the  12th  section  of  the 
Bill  of  Rights. 

That  the  assessment  and  levy  for  primary  school  district  No. 
30,  of  Howard  District,  under  and  by  virtue  of  which  the  pro- 
perty of  the  plaintiff  in  this  action  was  taken  and  distrained, 
was  illegal  and  void  : 

1st.  Because  the  meeting  at  which  said  levy  was  made,  was 
not  a  legal  district  meeting,  the  same  being  held  without  any 
notice  being  given  to  the  taxable  inhabitants  of  said  district, 
in  writing,  at  least  ten  days  before  the  time  appointed  for  said 
meeting,  by  the  district  clerk,  and  there  is  no  legal  evidence 
that  any  notice  was  given. 

2nd.  Because  at  said  annual  meeting  the  clerk  of  said  dis- 
trict was  not  elected  by  ballot,  and  did  not  give  bond  as  re- 
quired by  law. 

3rd.  Because  the  trustees  of  said  school  district  were  not 
elected  according  to  law,  i.  e.,  by  ballot. 

4tb.  Because  the  trustees  of  said  school  district  did  not 
make  a  rate  bill  or  tax  list,  according  to  law,  and  annex  to 
such  tax  list  or  rate  bill  a  warrant,  and  deliver  the  same  to  the 
collector  of  the  said  school  district. 

5th.  Because  the  taxable  inhabitants  of  said  school  district 
did  not  elect,  by  ballot,  a  district  collector  at  their  last  annual 
meeting,  and  Thomas  Burgess  has  never  been  elected  collec- 
ted of  said  school  district. 


OF  MARYLAND.  17 


Burgess  vs.  Pue. — 1844. 


6th.  The  collector  of  said  school  district  did  not  give  bond 
•with  security,  to  the  satisfaction  of  the  trustees,  for  the  faith- 
ful discharge  of  the  duties  of  his  office. 

7.  Because  the  defendant  in  this  action  is  not  the  collector 
of  the  saiil  school  district,  and  has  no  authority  in  law,  for  col- 
lecting the  tax  assessed  for  the  same. 

Upon  the  foregoing  statement  and  reasons,  the  court  is  re- 
quested to  enter  such  judgment  as  may  be  right,  subject  to 
the  appeal  of  the  party  against  whom  the  judgment  may  be 
rendered. 

The  counly  court  rendered  judgment  for  the  plaintiff  in  re- 
plevin, and  the  defendant  appealed  to  this  court. 

The  cause  was  argued  before  STEPHEN,  ARCHER  and 
CHAMBERS,  J. 

By  T.  S.  ALEXANDER,  for  the  appellant,  and 
By  R-  I.  BOWIE,  for  the  appellee. 

STEPHEN,  J.,  delivered  the  opinion  of  this  court. 

This  action  of  replevin  was  instituted  in  the  court  below  to 
recover  certain  property  which  had  been  taken  by  the  appel- 
lant, as  collector,  for  a  school  tax  alleged  to  be  due  by  the  ap- 
pellee, and  which  had  been  imposed  by  the  taxable  inhabitants 
of  a  school  district,  under  the  system  of  primary  schools  as  es- 
tablished by  law.  The  judgment  of  the  court  below  was  in 
favor  of  the  plaintiff  in  that  court,  and  defendant  appealed  to 
this  tribunal  to  obtain  a  reversal  of  that  judgment,  on  the  ground 
that  it  was  erroneous,  and  that  the  suit  ought  not  to  have  been 
sustained. 

In  support  of  the  decision  which  was  rendered  in  his  favor, 
the  appellee  has  taken  several  exceptions  to  the  legality  of  the 
proceedings  of  the  meeting  of  the  inhabitants  by  which  the 
levy  was  made,  and  also  to  the  validity  and  regularity  of  the 
meeting  itself.  Mere  formal  objections  are  cured  by  an  act  of 
Assembly  which  was  passed  for  the  express  purpose  of  healing 
all  such  informalities.  Under  the  operation  of  that  act,  which 
passed  in  the  year  1828,  ch.  169,  all  matters  of  form  are  to 
3  v.2 


18  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 


be  disregarded,  and  matters  of  substance  alone  to  be  attended 
to;  its  language  is,  "  that  the  aforesaid  act  (meaning  the  act 
for  the  public  instruction  of  youth  in  primary  schools  through- 
out the  State,)  and  this  act  be,  and  the  same  are  hereby  de- 
clared to  be,  public  and  remedial  acts,  and  shall  be  construed 
by  all  courts  of  justice  according  to  the  equity  thereof,  and  no 
proceedings  of  the  inhabitants  or  of  the  trustees  of  any  school 
district,  shall  be  set  aside  or  adjudged  to  be  void,  for  defect 
of  form,  or  for  any  irregularity  therein,  so  as  the  requisitions 
of  said  acts  are  substantially  complied  with."  But  the  objec- 
tion to  the  legality  of  the  appointment  of  the  collector  is,  we 
think,  fatal  and  well  founded,  notwithstanding  the  provisions 
of  that  act.  His  power  to  act  was  not  legitimate,  because  he 
was  not  elected  by  the  competent  authority.  The  act  of  1825, 
ch.  162,  sec.  8,  expressly  vests  the  power  of  appointing  the 
district  collector  in  the  taxable  inhabitants  of  the  district,  and 
by  sec.  11,  he  is  required  to  give  bond,  with  security,  to  the 
satisfaction  of  the  trustees,  for  the  faithful  discharge  of  the 
duties  of  his  office.  The  same  section  further  provides  that 
the  collector  of  the  county  charges  may  be  eligible  as  the  dis- 
trict collector,  but  the  election,  to  be  valid,  must  still  be  made 
by  the  taxable  inhabitants,  as  the  power  of  the  trustees  is  lim- 
ited to  the  taking  of  the  bond,  with  security.  By  an  act  of 
Assembly  passed  in  the  year  1837,  ch.  90,  it  is  made  the  duty 
of  "  any  sheriff  or  county  collector,  in  Anne  Arundel  county 
or  Howard  District,  in  the  event  of  being  selected  or  appoint- 
ed a  collector  for  any  or  all  of  the  school  districts,  to  accept 
of  the  appointment,  or  forfeit  for  each  refusal  the  sum  of  one 
hundred  dollars  ;"  but  no  change  in  the  mode  of  appointment 
is  provided  for  or  authorised  by  that  act.  The  collector  in  this 
case,  not  being  selected  by  the  competent  authority,  that  is  to 
say,  by  the  taxable  inhabitants  of  the  school  district,  had  no 
legal  warrant  or  authority  to  act,  and  all  his  proceedings  being 
tortious  and  unlawful,  the  action  of  replevin  was  properly 
sustained  by  the  court  below.  This  defect  renders  it  unne- 
cessary to  inquire  whether  other  objections,  which  have  been 
taken  to  the  proceedings,  are  fatal. 


OK  MAKYLAIN'D. 


Burgoss  vs.  Pue. — 1844. 


We  think  there  was  no  validity  in  the  constitutional  question 
which  was  raised  by  the  appellee's  counsel  in  the  course  of  his 
argument,  relative  to  the  competency  of  the  legislature  to  del- 
egate the  power  of  taxation  to  the  taxable  inhabitants  for  the 
purpose  of  raising  a  fund  for  the  diffusion  of  knowledge  and 
the  support  of  primary  schools.  The  object  was  a  laudable 
one,  and  there  is  nothing  in  the  Constitution  prohibitory  of  the 
delegation  of  the  power  of  taxation,  in  the  mode  adopted,  to 
effect  the  attainment  of  it ;  we  may  say  that  grants  of  similar 
powers  to  other  bodies,  for  political  purposes,  have  been  co- 
eval with  the  Constitution  itself,  and  that  no  serious  doubts 
have  evei  been  entertained  of  their  validity.  It  is  therefore 
too  late  at  this  day  to  raise  such  an  objection.  The  ground  of 
the  objection  taken  in  the  argument  to  the  constitutionality  of 
the  tax,  seemed  to  be,  that  the  act  of  the  legislature  delega- 
ting the  power  of  taxation  to  the  taxable  inhabitants  was  a 
violation  of  the  fourth  and  twelfth  sections  of  the  Bill  of  Rights, 
the  first  of  which  provides  "that  all  persons  invested  with  the 
legislative  or  executive  powers  of  government,  are  the  trustees 
of  the  public,  and  as  such  accountable  for  their  conduct ;"  and 
the  last,  "that  no  aid,  charge,  tax,  fee  or  fees,  ought  to  be  set, 
rated  or  levied,  under  any  pretence,  without  consent  of  the 
legislature."  It  is  not  perceived  how  the  act  in  question  can 
be  deemed  a  violation  of  either  of  those  principles  of  the  funda- 
mental law.  The  tax  was  certainly  levied  with  the  consent  of 
the  legislature,  because  the  power  to  impose  it  emanated  from 
the  legislative  department  of  the  government,  and  was  expressly 
given  by  a  law  passed  for  that  purpose,  and  there  is  nothing 
in  it  which  can  be  considered  as  in  the  slightest  degree  im- 
pairing the  icsponsibility  of  the  law-making  power  to  their 
constituents,  for  the  due  and  faithful  execution  of  the  trust 
confided  to  them,  because  if  deemed  to  be  unwise  or  inex- 
pedient, an  expression  of  the  popular  will  to  that  effect  was 
all  that  was  necessary  to  procure  its  repeal. 

Some  other  objections  to  the  regularity  of  the  proceedings, 
connected  with  this  case,  were  made  by  the  counsel  for  the 
appellee  in  the  course  of  his  argument,  which  it  is  deemed 


20  CASES  IN  THE  COURT  OF  APPEALS 


B.  and  S.  Rail  Road  Co.  r*.  Compton  and  others. — 1844. 

unnecessary  to  consider,  (his  court  being  of  opinion  that  the 
judgment  of  the  court  below  was  correct,  and  that  the  same 
ought  to  be  affirmed.  JUDGMENT  AFFIRMED. 


THE  BALTIMORE  AND  SUSQUEHANNA  RAILROAD  COMPANY 

VS.  TlLGHMAN  G.   CoMPTON  AND  OTHERS. June,  1844. 

Whore  an  inquisition  was  taken,  returned,  and  ratified,  according  to  law, 
upon  proceedings  by  a  railroad  company,  which  found  that  a  piece  or  par- 
cel of  land  was  wanted  by  the  company  for  the  construction  of  their  road, 
and  assessed  the  damages  which  the  owner  of  the  fee  would  sustain  by 
the  use  and  occupation  of  his  land  for  the  purpose  aforesaid,  at,  &c.,  all 
questions  having  relation  to  the  damage  done  by  the  location  and  con- 
struction  of  the  road  are  terminated  and  concluded  by  such  inquest. 

And  hence  in  an  action  brought  by  the  owner  of  a  fee  against  the  company 
for  having,  after  the  construction  of  the  road  through  his  land,  (the  bene- 
fits  of  which  construction  to  the  plaintiff  had  been  submitted  to  the  jurors 
upon  the  inquisition  aforesaid,)  abandoned  the  same,  and  constructed  the 
road  anew  in  another  location,  off  the  plaintiff's  land,  the  plaintiff  cannot 
give  evidence  of  the  damage  which  would  accrue  to  him  from  such  ori- 
ginal construction  independent  of  the  inquisition. 

After  a  railroad  company  had  constructed  its  road  by  authority  of  law, 
through  the  plaintiff's  land,  condemned  for  that  object,  they  were  author- 
ised to  alter  the  location  of  their  road  between  two  given  points.  They 
re -constructed  their  road,  and  abandoned  that  part  which  had  been  made 
through  the  plaintiff's  land,  HELD:  that  the  authority  derived  from  the 
legislature  to  alter  the  location,  did  not  exempt  the  company  from  liability 
to  the  plaintiff  for  the  loss  sustained  by  him  by  reason  of  such  abandon- 
ment. 

Where  a  railroad  company  had  constructed  a  road,  then  abandoned  it  in 
part,  and  changed  the  location  pro  tanto,  a  plaintiff  through  whose  land 
the  road  orginally  passed,  having  sustained  no  damage  or  injury  in  fact, 
by  the  alteration,  cannot  maintain  an  action  for  such  change  of  location. 

An  inquisition  to  condemn  land  for  the  use  of  the  B.  and  S.  Railroad  Com- 
pany, in  Baltimore  county,  out  of  the  limits  of  the  City  of  Baltimore,  ought 
not  to  bo  held  upon  the  warrant  of  a  justice  of  the  peace  appointed  for  said 
city.  Per  Baltimore  county  court. 

Under  the  act  of  1827,  ch.  72,  resident  jurors  in  the  city  of  Baltimore  may 
be  summoned  to  act  in  any  part  of  Baltimore  county.  Ib. 

The  description  in  an  inquisition  of  land  condemned,  ought  to  be  sufficiently 
certain.  The  omission  to  insert  the  namo  of  the  tract  is  not  fatal.  A 


OF  MARYLAND.  21 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 

description  is  sufficient  when  it  calls  for  stones,  trees,  planted  boundaries, 
fixed  objects,  or  where  it  takes  for  the  beginning  of  the  land  intended  to 
be  described,  any  spot  or  point  of  beginning  on  land  either  conveyed  to  the 
company  and  recorded,  or  on  land  theretofore  condemned  by  inquisition, 
recorded.  Ib. 

The  description  in  an  inquisition  beginning  for  the  land  condemned  at  sta- 
tion No.  147,  on  the  location  of  said  railroad,  and  running  thence  to  sta- 
tion No.  170,  being  23  stations  of  100  feet  each  in  length,  and  occupying  a 
space  of  66  feet  in  width,  is  not  sufficiently  accurate  to  authorise  its  rati- 
fication. Ib. 

Under  the  charter  of  the  B.  and  S.  Railroad  Company,  the  inquisition  for 
the  condemnation  of  land  should  state  that  it  was  for  the  construction  of 
the  road,  in  that  event  the  entire  interest  is  condemned.  Ib. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  Trespass  upon  the  case,  commenced 
on  the  21st  December,  1839,  by  the  appellees  against  the  ap- 
pellants. The  declaration  of  the  plaintiff  alleged  : 

IST  COUNT.  That  whereas  by  an  act  of  the  General  Assem- 
bly of  Maryland,  entitled  "An  act  to  incorporate  the  B.  &  S. 
R.  R.  Co."  it  was  amongst  other  things  enacted,  that  the  sub- 
scribers of  the  stock  therein  mentioned,  their  successors  and 
assigns,  should  be,  and  they  were  thereby  declared  to  be,  in- 
corporated into  a  company,  &c.;  and  amongst  other  things  in 
the  said  act  mentioned  and  enumerated,  the  president  and  di- 
rectors of  the  said  company  were  invested  with  all  the  rights 
and  powers  necessary  for  the  construction  and  repair  of  a  rail- 
road from  the  City  of  Baltimore  to  some  suitable  point  or  points 
on  the  Susquehanna,  river ,  to  be  by  them  determined,  not  ex- 
ceeding sixty-six  feet  wide  ;  and  whereas  by  the  said  act  of 
Assembly,  it  was  also  enacted,  that  the  president  and  directors 
of  said  company,  or  a  majority  of  them,  or  any  person  or  per- 
sons authorised  by  a  majority  of  them,  might  agree  with  the 
owner  or  owners  of  any  land,  earth,  &c.,  or  any  improvements 
which  might  be  wanted  for  the  construction  or  repair  of  any 
of  said  roads,  or  any  of  their  works,  for  the  purchase  or  use 
and  occupation  of  the  same,  and  if  they  could  not  agree,  or 
if  the  owner  or  owners,  or  any  of  them,  be  afeme  covert,  un- 
der age,  non  compos  mentis,  or  out  of  the  county  in  which  the 
property  might  be,  when  such  land  and  material  may  be  want- 


•2'2  CASES  IN  THE  COURT  OF  AITKAL3 


B.  and  S.  Rail  Road  Co.  vs.  Cornpton  and  others. — 1844. 


eel,  application  might  be  made  to  any  justice  of  the  peace  of 
such  county,  who  should  thereupon  issue  his  warrant,  under 
hand  and  seal,  directed  to  the  sheriff  of  said  county,  requiring 
him  to  summon  a  jury  of  twenty  inhabitants  of  said  county, 
&c.,  to  meet  on  the  land,  or  near  to  the  other  property  or  ma- 
terials to  be  valued,  on  a  day  named  in  said  warrant,  not  less 
than  ten,  nor  more  than  twenty  days,  after  the  issuing  of  the 
same;  and  if  at  said  time  and  place  any  of  said  jurors  sum- 
moned should  not  attend,  &c.,  that  before  they  should  act  as 
such,  the  said  sheriff  should  administer  to  each  of  them  an 
oath  or  affirmation,  as  the  case  might  be,  that  he  would  justly 
and  impartially  value  the  damages  which  the  owner  or  owners 
might  sustain  by  the  use  and  occupation  of  the.  same,  required 
by  the  company,  and  that  the  jury  in  estimating  such  damages 
should  take  into  the  estimate  the  benefits  resulting  to  the  said 
owner  or  owners  from  the  conducting  such  railroad  through, 
along,  or  near  to,  the  property  of  said  owner  or  owners,  but 
only  in  extinguishment  of  the,  claim  for  damages,  and  that  the 
said  jury  should  reduce  their  inquisition  to  writing,  and  should 
sign  and  seal  the  same,  and  that  it  should  then  be  returned  by 
said  sheriff  to  the  clerk,  &c.,  and  should  be  confirmed  by  said 
court  at  its  next  session,  if  no  sufficient  cause  to  the  contrary 
be  shown,  and  when  confirmed  should  be  recorded  by  the  said 
clerk,  &c.;  but  if  set  aside,  the  said  court  should  direct  an- 
other inquisition  to  be  taken  in  the  manner  above  prescribed, 
and  that  such  inquisition  should  describe  the  property  taken, 
or  the  bounds  of  the  land  condemned,  and  the  quantity  of  du- 
ration of  the  interest  in  the  same,  valued  for  the  company,  and 
such  valuation,  when  paid  or  tendered  to  the  owner  or  owners  of 
said  property,  or  his.  her  or  their  legal  representatives,  should 
entitle  the  said  company  to  the  estate  and  interest  in  the  same, 
thus  valued,  as  fully  as  if  it  had  been  conveyed  by  the  owner  or 
owners  of  the  same;  and  whereas,  one  Thomas  Compton,  late 
of  Baltimore  county,  deceased,  who  was  the  father  of  the 
plaintiffs  in  this  action,  was,  in  his  life-time,  to  wit,  on  the  first 
day  of  March,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-one,  and  at  the  time  of  his  death,  at  the 


OF  MARYLAND.  23 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 

county  aforesaid,  seized  in  fee  simple  of  a  certain  tract,  or 
part  of  a  tract,  or  parcel  of  land,  situate,  lying,  and  being  in 
said  county,  called  Ridgely's  Whim;  and  whereas,  on  the  day 
and  year  last  aforesaid,  at  the  county  afoiesaid,  the  president 
and  directors  of  the  said  company,  or  a  majority  of  them,  did 
determine  to  locate  and  construct  the  B.  «§r  S.  R.  R.  through, 
along,  over  and  upon  the  said  lands  of  the  said  Thomas  Comp- 
ton; and  whereas,  the  president  and  directors  of  said  company 
could  not  agree  with  the  said  Thomas  Compton,  for  the  lands 
so  wanted  for  the  location  and  construction  of  the  said  rail- 
road, and  the  said  Thomas  Compton  would  not  consent  to  the 
location  and  construction  of  the  said  road  through,  along, 
over,  and  upon  his  said  lands,  the  president  and  directors  of 
the  said  company  caused  the  said  railroad  to  be  located,  made, 
and  constructed,  through,  along,  over  and  upon  the  said  lands 
of  the  said  Thomas  Compton,  for  the  length  of  twenty-three 
hundred  feet,  and  of  the  breadth  of  sixty-six  feet,  using  and 
occupyirg  therefor  three  acres  one  rood  and  thirty-eight  perch- 
es of  land,  without  his  permission  and  consent,  and  without 
making  or  allowing  him  any  compensation  whatever  therefor. 
And  the  said  plaintiffs  further  say,  that  in  the  making  and  con- 
structing of  the  said  road  through,  along,  over  and  upon  the 
said  lands  of  the  said  Thomas  Compton,  as  aforesaid,  the  pre- 
sident and  directors  of  the  said  company  caused  an  embank- 
ment, consisting  of  earth,  stone  and  gravel,  to  be  made,  of 
the  length  of  two  thousand  feet,  of  the  breadth  of  thirty  feet, 
and  of  the  height  of  ten  feet,  on  one  part  of  the  said  land,  and 
that  the  president  and  directors  of  the  said  company  also 
caused  to  be  made,  an  excavation,  of  the  length  of  two  hun- 
dred feet,  of  the  breadth  of  sixty-six  feet,  and  of  the  depth  of 
twenty  feet,  on  another  portion  of  said  land,  to  the  great  dam- 
age and  injury  of  said  Thomas  Compton.  And  the  said  plain- 
tiffs further  say,  that  afterwards,  to  wit,  on  the  sixteenth  day 
March,  in  the  year  eighteen  hundred  and  thirty-one,  at  the 
county  aforesaid,  the  jB.  fy  S.  R.  R.  Co.  made  application  to 
Henry  Brice,  esquire,  a  justice  of  the  peace  of  the  State  of 
Maryland,  in  and  for  the  city  of  Baltimore,  to  issue  his  war- 


24  CASES  LN  THE  COURT  OF  APPEALS 

B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 


rant,  under  his  hand  and  seal,  directed  to  the  sheriff  of  said 
county,  requiring  him  to  summon  a  jury  of,  &c.,  as  the  jury 
of  inquest  of  damages  in  the  matter  of  the  said  Thomas  Comp- 
ton, in  pursuance  of  the  said  act  of  Assembly,  and  that  the  said 
warrant  was  accordingly  issued,  directed  to  Henry  Green,  Esq. 
the  then  sheriff  of  said  county,  and  executed  and  returned  to 
Baltimore  county  court,  and  that  afterwards,  to  wit,  on  the  30th 
April,  1833,  the  said  inquisition,  so  taken  and  reUnned,  was 
quashed  and  set  aside  by  the  court,  and  the  said  sheriff  was 
ordered  and  directed  to  summon  a  new  jury,  which  was  done, 
and  a  new  inquisition  taken,  executed  and  returned,  and  con- 
firmed by  the  said  court,  and  that  the  said  Thomas  Compton 
was  allowed  one  cent  for  his  damages,  and  no  more.  And  the 
said  plaintiffs  further  say,  that  the  B.  fy  S.  R.  R.  Co.  continued 
from  the  16th  March,  1831,  until  the  1st  September,  1838,  at, 
&c.,  to  use,  occupy,  possess  and  enjoy  that  portion  of  the  said 
tract  or  parcel  of  land  hereinbefore  mentioned,  and  the  rail- 
road thereon  made  and  constructed,  without  paying  or  allow- 
ing any  compensation  whatever  therefor.  And  that  said  plain- 
tiffs further  say,  that  the  said  Thomas  Compton  departed  this 
life  on  or  about  the  1st  December,  1833,  at,  &c.,  and  that  his 
real  estate  descended  to  the  said  plaintiffs,  as  his  heirs-at-law. 
SND  COUNT.  And  the  said  plaintiffs  further  say,  that  after- 
wards, to  wit,  by  an  act  of  the  General  Assembly  of  Maryland, 
passed  at,  &c.,  entitled  "  A  further  supplement  to  an  act  en- 
titled an  act  to  incorporate  the  B.  8?  S.  R.  R.  Co."  it  was  en- 
acted that  the  B.  $  S.  R.  R.  Co.  be,  and  they  were  thereby 
authorised  to  alter  the  location  of  their  road  between  Balti- 
more and  Timonium  and  Owings'  mills,  and  in  making  such 
alteration  have  and  exercise  all  the  powers  conferred  by  the 
act  of  incorporation  for  the  purpose  of  originally  constructing 
said  road.  And  the  said  plaintiffs  further  say,  that  afterwards, 
to  wit,  on  the  1st  September,  1838,  at,  &c.,  the  B.  &  S.  R. 
R.  Co.,  in  pursuance  of  the  powers  in  them  vested  as  aforesaid, 
altered  the  location  of  their  road  between  Baltimore  and  Ti- 
monium, and  abandoned  all  that  part  of  their  said  railroad  which 
had  been  located  and  constructed  upon  the  lands  of  ike  said 


OF  MARYLAND. 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 

Thos.  Compton)  as  aforesaid,  and  made  and  constructed  their  said 
railroad  from  and  off  the  lands  of  the  said  plaintiffs,  and  have 
ceased  to  use  and  travel  upon  that  part  of  their  said  road  which 
was  originally  made  and  constructed  upon  the  lands  of  the  said 
plaintiffs^  and  have  thereby  entirely  deprived  the  said  plaintiffs 
of  the  benefits  resulting  to  the  said  plaintiffs  from  the  conduct- 
ing of  the  said  railroad  through,  along,  and  upon  their  said 
lands,  to  their  great  loss  and  injury,  and  without  making  and  al- 
lowing to  them,  the  said  plaintiffs,  any  compensation  whatever 
therefor.  And  the  said  plaintiffs  further  say,  that  since  the 
passing  of  the  several  acts  of  Assembly  hereinbefore  mention- 
ed, and  since  the  condemnation  of  the  lands  of  the  plaintiffs, 
for  the  uses  and  purposes  aforesaid,  and  since  the  original  lo- 
cation and  construction  of  the  said  railroad,  and  since  the  ma- 
king of  the  said  embankments  and  excavation  hereinbefore 
mentioned,  and  since  the  making  and  constructing  of  their 
said  railroad  anew,  between  Baltimore  and  Timonium^  and 
the  abandonment  of  the  original  location  and  construction 
thereof  upon  the  lands  of  the  said  plaintiffs,  and  the  discon- 
tinuance of  the  travel  thereon,  to  wit,  on  the  1st  January,  1840, 
at,  &c.,  and  ever  since,  the  B.  fy  S.  R.  R.  Co.  well  knowing 
the  premises,  but  not  regarding  their  own  duties,  nor  the  rights 
of  the  said  plaintiffs,  have  not  removed  the  said  embankment, 
nor  the  earth,  stone  and  gravel  wherewith  the  same  was  made 
and  constructed,  nor  have  the  B.  #  S.  R.  R.  Co.  filled  up  the 
said  excavation  hereinbefore  mentioned,  as  they  ought  to  have 
done,  but  have  permitted  the  same  to  remain  as  made,  to  the 
great  loss  and  damage  of  the  said  plaintiffs.  By  all  which 
said  premises,  the  said  plaintiffs  say  that  they  are  injured,  and 
have  sustained  damage  to  the  value  of,  &c. 

To  this  declaration  the  defendants  pleaded  not  guilty  on  the 
first  count,  on  which  issue  was  joined  ;  and  by  consent  of 
parties  leave  was  given  generally  to  offer  special  matter  in 
evidence. 

The  defendants  demurred  to  the  second  count,  and  the  coun- 
ty court  rendered  judgment  thereon  for  them.     As  to  both 
4         v.2 


26  CASES  IN  THE  COURT  Of  APPEALS 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 


counts,  however,  all  "errors  in  pleading"  were  waived  by 
consent. 

At  the  trial  the  jury  found  a  verdict  for  the  plaintiffs,  of 
$1,643,  with  interest  from  the  25th  May,  1841. 

1  ST  EXCEPTION.  The  plaintiffs,  to  support  the  issue  on  their 
part,  offered  in  evidence  the  charter  granted  to  the  defendants 
by  the  General  Assembly,  and  proved  that  they  were  the  chil- 
dren and  heirs-at-law  of  Thomas  Compton,  in  whose  life-time, 
at  the  instance  of  the  defendants,  the  following  proceedings 
took  place  for  the  condemnation  of  a  part  of  a  tract  of  land, 
belonging  to  him  in  fee,  and  lying  in  said  county,  about  three 
and  a  half  miles  from  the  city  of  Baltimore)  and  at  the  time  of 
this  action  owned  by  and  in  the  possession  of  the  said  plain- 
tiffs, as  his  heirs-at-law. 

"  THOMAS  COMPTON  :  Inquisition,  condemnation  and  con- 
firmation of  part  of  his  lands,  for  the  use  of  the  Baltimore  and 
Susquehanna  Railroad  Company : 

"  Be  it  remembered,  that  on  the  11th  April,  1831,  H.  G., 
Esq.  sheriff  of  B.  Co.,  in  pursuance  of  an  act  of  the  General 
Assembly  of  Maryland,  &c.,  entitled  "An  act  to  incorporate 
the  B.  £f  S.  R.  R.  Co."  made  return  to  the  court  here  of  the  fol- 
lowing warrant,  inquisition  and  return,  to  wit : 
"  MARYLAND,  Baltimore  county,  to  wit : 

"To  Henry  Green,  Esq.,  sheriff  of  said  county:  Whereas 
application  has  been  made  to  me,  a  justice  of  the  peace  of, 
&c.,  by  the  P.  Sf  D.  of  the  B.  $  S.  R.  R.  Co.,  stating  that  the 
said  company  cannot  agree  with  T.  C.  for  the  purchase  or  use 
and  occupation  of  a  certain  tract  or  parcel  of  land,  lying  in 
said  county,  belonging  to  the  said  T.  C.,  and  contained  within 
the  following  metes  and  bounds,  courses  and  distances,  to  wit : 
Beginning  for  the  same  at  station  No.  147,  on  the  location  of 
said  railroad,  and  running  thence  to  station  No.  170,  being 
twenty-three  stations  of  one  hundred  feet  each  in  length,  and 
occupying  a  space  of  sixty-six  feet  in  width,  containing  three 
and  a  half  acres,  and  which  said  tract  is  wanted  by  the  said 
company  for  the  construction  of  a  railroad  from  the  city  of  B. 
towards  the  S.  river,  under  and  in  conformity  to  the  provisions 


OF  MARYLAND.  27 


B.  and  S.  Rail  Road  Co.  »».  Compton  and  others. — 1844. 

of  an  act  of  Assembly,  passed,  &c.,  entitled  "An  act,"  &c. 
Now,  therefore,  I,  the  said  justice,  under  and  by  virtue  of  the 
said  act  and  application  aforesaid,  do  hereby  authorise  and 
command  you  to  summon  a  jury  of  twenty  inhabitants  of  said 
county,  not  related  to  said  T.  C.,  nor  in  any  way  interested, 
to  meet  on  the  land,  on  Monday  the  28th  day  of  March  instant, 
the  date  hereof.  Herein  fail  not,  and  this  shall  be  your  war- 
rant and  authority  therefor.  Witness  ray  hand  and  seal,  this 
16th  March,  1831.  HENRY  BRICE,  (Seal.)" 

"  I  hereby  certify  and  return,  that  by  authority  and  in  pur- 
suance of  the  commands  of  the  within  warrant  to  me  directed, 
I  summoned  R.  D.,  &c.,  being  a  jury  of  twenty  inhabitants  of 
said  county,  not  related  to  the  within  named  T.  C.,  nor  in  any 
wise  interested,  to  meet  on  the  lands  on  Monday  the  twenty- 
eighth  day  of  March,  1831,  at  which  time  and  place  did  ap- 
pear the  above  named  persons,  being  the  jurors  aforesaid,  from 
which  pannel  the  president  of  the  company  did  strike  off,  &c. 
leaving  twelve  jurors  to  act  as  a  jury  of  inquest  of  damages,  to 
wit,  R.  D.,  &c.;  and  before  the  said  jurors  proceeded  to  act 
as  such,  I  administered  to  each  of  them  the  following  oath  or 
affirmation:  (as  they  respectively  swore  or  affirmed,)  "  You  do 
swear,  (or,  solemnly,  sincerely  and  truly  declare  and  affirm,) 
that  you  will  justly  and  impartially  value  the  damages  which 
T.  C.  will  sustain  by  the  use  or  occupation  of  the  tract  of  land 
required  by  the  B.  Of  S.  R.  R.  C,  for  the  construction  of  a 
railroad  from  the  city  of  B.  towards  the  S.  river."  Whereupon, 
having  shown  to  the  said  jury  the  tract  of  land  within  descri- 
bed, and  directed  the  said  jury  to  take  into  the  estimate  of 
damages  the  benefits  resulting  to  the  said  T.  C.  from  the  pas- 
sage of  such  railroad  through  and  along  said  property,  but  only 
in  the  extinguishment  of  the  claim  for  damages,  the  said  jury 
did  reduce  their  inquisition  to  writing,  and  did  sign  and  seal 
the  same  in  manner  and  form  as  by  the  original  of  the  said  in- 
quisition, hereto  annexed,  and  made  part  of  this  return,  doth 
appear.  Whereupon,  I  hereby  return  the  said  inquisition  to 
William  Gibson)  the  clerk  of  the  said  county,  as  directed  by  the 
act  of  Assembly,  entitled  "An  act  to  incorporate  the  Baltimore 


28  CASES  IN  THIS,  COURT  OK  APPEALS 


B.  and  S.  Rail  Road  Co.  v*.  Compton  and  others. — 1844. 


and  Susquehanna  Railroad  Company"  Witness  ray  hand  and 
seal.  HENRY  GREEN,  (Seal,) 

Sheriff  of  Baltimore  County." 

INQUISITION.  Maryland,  B.  county  :  An  inquisition  taken 
at  the  said  county,  on  the  28th  March,  1831,  before  H.  G., 
sheriff,  &c.,on  the  oath  of  R.  D.,  &c.,  who,  having  been  sum- 
moned by  said  sheriff,  and  sworn  justly  and  impartially  to  value 
the  damages  which  T.  C.  will  sustain  by  the  use  and  occupa- 
tion of  that  piece,  parcel  or  tract  of  land,  owned  by  the  said 

T.  C.,  situated  in  said  county,  being  part  of  a  tract  called , 

and  contained  within  the  following  metes  and  bounds,  courses 
and  distances,  to  wit :  Beginning  for  the  same  at  station  No. 
147,  on,  &c.,  as  before  described  in  the  justice's  warrant ; 
which  said  piece,  parcel  or  tract,  is  wanted  by  the  B.  fy  S.  R. 
R.  C.  for  the  use  of  a  railroad  from  the  city  of  Baltimore  to- 
wards the  Susquehanna  river,  upon  their  oaths  do  say,  that  the 
said  T.  C.  is  not  entitled  to  any  damage  by  the  use  and  occu- 
pation aforesaid.  In  testimony  whereof,  we,  the  subscribers, 
being  the  jurors  aforesaid,  have  hereunto  set  our  hands  and 
seals,  on  the  day  and  year  first  above  written. 

RICH'D  DORSEY,  (Seal.)  &c. 

I  do  hereby  certify  and  return  to  the  clerk  of  Baltimore 
county  court,  the  within  inquisition,  taken  before  me,  on  the 
oaths  of  the  jurors  within  named;  as  herein  set  forth  and  re- 
duced to  writing,  and  signed  and  sealed  by  the  said  jurors,  in 
my  presence,  agreeably  to  the  directions  of  the  Act  of  Assem- 
bly, entitled,  an  act  to  incorporate  the  Baltimore  and  Susque- 
hanna Railroad  Company.  HENRY  GREEN, 

Sheriff  of  Balto.  County,  (Seal.) 

Which  said  inquisition  was  quashed  by  Baltimore  county 
court  on  the  motion  of  the  said  T.  C. 

1st.  The  court  is  of  opinion  that  the  issuing  of  the  warrant 
by  H.  B.,  he  being  "a  justice  of  the  peace  of  the  State  of 
Maryland,  in  and  for  the  city  of  Baltimore,"  was  irregular, 
and  affords  proper  ground  for  quashing  the  inquisition. 

2nd.  The  court  is  of  opinion  that  the  summoning  of  jurors 


OF  MARYLAND.  29 

B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 


resident  in  the  city  of  Baltimore,  is  not  contrary  to  law,  for 
the  purposes  contemplated  by  the  act  of  1827,  chap.  72,  and 
within  its  intent  and  meaning,  jurors  may  be  taken  from  any 
part  of  the  entire  county,  of  which  county,  for  that  purpose, 
the  city  of  Baltimore  is  a  part.  The  jurors  summoned  must 
be  disinterested  within  the  intent  and  provisions  of  the  said 
act. 

3rd.  The  court  is  of  opinion  that  the  description  of  the  land 
•condemned  is  not  sufficiently  certain,  but  that  the  omission  to 
insert  the  name  of  the  tract  of  land  is  not  a  fatal  defect.  The 
description  would  have  been  sufficiently  accurate  if  it  had 
called  for  stones,  trees,  or  any  boundaries  planted,  or  other 
fixed  objects,  or  if  it  had  taken  for  the  beginning  of  the  land 
intended  to  be  described,  any  spot  or  point  of  beginning  on 
land  either  conveyed  to  the  railroad  company,  and  therefore 
rendered  certain  by  the  record  of  the  deed  of  conveyance,  or 
on  land  theretofore  condemned  by  inquisition,  for  the  use  of 
the  company,  if  the  inquisition  was  recorded. 

4th.  The  court  is  of  opinion,  also,  that  the  inquisition  ought 
to  have  set  forth  thvit  the  land  was  condemned  for  the  use  of 
the  company,  for  construction ,  which  woulJ  have  been  suffi- 
cient, but  the  statement  of  that  fact  in  the  warrant,  does  not, 
in  the  opinion  of  the  court,  comply  with  the  requisition  of  the 
law,  that  it  should  appear  in  the  inquisition. 

5th.  The  court  is  of  opinion  that  it  is  not  necessary  for  the 
inquisition,  in  order  to  comply  with  that  part  of  the  law  which 
requires  the  jury  to  state  "the  quantity  of  duration  of  interest," 
to  set  forth  whether  the  land  is  condemned  in  fee,  for  life,  or 
years,  or  otherwise,  but  that  the  inquisition  will  be  good  if  it 
sufficiently  appear  on  its  face,  as  it  will  do  if  the  land  be  stated 
to  be  wanted  "for  construction"  of  the  railroad,  that  the  entire 
interest  in  the  land  condemned  is  intended  to  be  taken. 

The  county  court,  on  the  30th  April  1833,  ordered  and  de- 
creed, that  th«  sheriff  of  Baltimore  county  summon  a  jury  of 
twenty  inhabitants  of  said  county,  not  related  to  the  said  de- 
fendant, nor  in  any  wise  interested  in  the  said  matter,  to  meet 
on  the  said  lands  of  the  said  T.  C,  required  by  the  said  plain- 


30  CASES  IN  THE  COURT  UK  APPEALS 


B.  and  S.  Rail  Road  Co.  r*.  Compton  and  others. — 1844. 

tiffs  for  the  uses,  purposes  and  operations  of  the  said  plaintiffs, 
or  near  thereto,  on  the  18th  day  of  May  next,  and  if,  at  the 
said  time  and  place,  any,  &c.,  from  which  panel  each  of  the 
said  parties,  his  or  their  agent  or  attorney,  may  strike  four  ju- 
rors, and  in  the  absence  of  the  said  parties,  or  either  of  them, 
or  their  agent  or  attorney,  the  said  sheriff  shall  strike  four  per- 
sons for  each  or  either  of  said  parties  from  said  panel,  and  the 
remaining  twelve  jurors  shall  act  as  the  jury  of  inquest  of 
damages  in  the  said  cause,  but  before  they  act  as  such,  the 
said  sheriff  shall  administer  to  each  of  them  an  oath  or  affir- 
mation, as  the  case  may  be,  that  he  will  justly  and  impartially 
value  and  assess  the  damages  which  the  said  defendant  will 
sustain  by  the  use  and  occupation  of  his  lands  and  premises 
by  the  said  plaintiffs,  and  the  said  jury,  in  estimating  such 
damages,  shall  take  into  the  estimate  the  benefits  resulting  to 
the  said  defendant  from  constructing  such  railroad  through, 
along  or  near  to  the  property  of  said  defendant,  but  only  in 
extinguishment  of  damages,  and  the  said  jury  shall  sign  and 
seal  their  said  inquisition,  and  deliver  it  to  the  said  sheriff, 
and  the  said  sheriff  shall  forthwith  return  the  same  to  this 
court. 

The  inquisition  returned  by  the  sheriff  under  the  order  of 
Baltimore  county  court,  after  reciting  the  proceedings,  stated 
that  the  jurors  were  sworn  justly  and  impartially  to  value 
and  assess  the  damages  which  T.  C.  will  sustain  by  the 
use  and  occupation,  for  the  purpose  of  construction  of  the 
railroad,  of  that  piece,  parcel  or  tract  of  land  owned  by  the 
said  T.  C.,  situated  in  said  county,  being  part  of  tract  called 
"Ridgely's  Whim"  or  by  whatsoever  name  or  names  the  same 
may  be  called  or  known,  and  contained  within  the  following 
metes  and  bounds,  courses  and  distances,  to  wit :  beginning 
for  the  same  at  a  stone  placed  in  the  ground,  forty  seven  feet 
from  a  Hickory  tree,  being  on  the  boundary  line  of  said  tract, 
marked  with  three  notches,  and  at  a  station  stake  numbered 
147,  on  the  line  of  the  B.  Sf  S.  R.  12.,  and  running  thence, 
north  26°  30'  east,  one  hundred  feet,  thence  north  18°  307 
east,  one  hundred  feet,  thence  north  7°  30'  east,  seven  hundred 


OF  MARYLAND.  31 


B.  and  S.  Rail  Road  Co.  ra.  Compton  and  others. — 1844. 

feet,  thence  north  5°  30'  east,  one  hundred  feet,  thence  north  1° 
30'  east,  one  hundred  feet,  thence  north  2°  307  west,  one  hundred 
feet,  thence  north  8°  30' east,  one  hundred  feet,  thence  north  14° 
west, one  hundred  feet,  thence  north  18°  west, one  hundred  feet, 
thence  north  19°  west,  one  hundred  feet,  thence  north  21°  west, 
one  hundred  feet,  thence  north  25°  west,  one  hundred  feet, 
thence  north  23°  west,  one  hundred  feet,  thence  north  14°  SO' 
west,  one  hundred  feet,  thence  north  3°  west,  one  hundred  feet, 
thence  north  4°  east,  one  hundred  feet,  thence  north  3°  west, 
one  hundred  feet,  to  station  No.  170,  on  the  line  of  said  road, 
supposed  to  be  the  termination  of  the  land  owned  and  occupied 
by  the  said  T,  C.,  containing,  by  the  above  described  courses, 
and  a  constant  width  of  66  feet,  three  acres,  one  rod,  and  thir- 
ty-eight perches  of  land,  more  or  less,  which  said  piece,  parcel 
or  tract  is  wanted  by  the  B.  $'  S.  R.  R.  Co.  for  construction 
of  a  railroad  from  the  city  of  B.  towards  the  S.  river,  upon  their 
oaths  do  say,  that  they  value  and  assess  the  damages  which 
the  said  Thomas  Compton  will  sustain  by  the  use  and  occupa- 
tion aforesaid,  at  the  sum  of  one  cent.  In  testimony  whereof, 
we,  &c. 

The  inquest  was  ratified  and  confirmed  on  the  6th  Novem- 
ber 1833. 

This  plaintiffs  further  offered  in  evidence,  that  under  and  by 
virtue  of  such  condemnation,  the  said  defendants  took  pos- 
session of  the  parcel  of  land  in  said  proceedings  described, 
and  proceeded  to  make  an  excavation  and  embankment  there- 
on, and  completed  upon  the  same  their  railroad,  and  used  and 
travelled  said  road ;  and  further  offered  in  evidence  from  the 
printed  statute  book,  a  supplement  to  the  charter  of  the  defen- 
dants, granted  by  the  General  Assembly  at  December  session 
1835,  chap.  371,  in  pursuance  of  the  provisions  of  which,  the 
defendants,  on  the  1st  January  1838,  abandoned  all  that  por- 
tion of  their  railroad  which  had  been  so  as  aforesaid  construct- 
ed on  the  land  of  said  T.  C.,  and  took  away  the  rails  there- 
from, and  wholly  ceased  to  use  and  travel  such  part  of  their 
said  road;  and  further  offered  to  prove  by  Henry  McElderry, 
John  W.  Ward  and  William  McLanahan,  witnesses  produced 


32  CASES  IN  THE  COURT  OF  APPEALS 

B.  and  8.  Rail  Road  Co.  cs.  Compton  and  others. — 1844. 

and  sworn  on  their  part,  that,  at  the  request  of  the  said  T.  C., 
and  prior  to  the  construction  of  the  said  road  upon  his  land, 
they  had  examined  said  land,  and  had  estimated  the  damage 
to  accrue  to  him  from  such  construction  at  the  sum  of  $1 ,100, 
and  that,  in  their  judgment,  the  damage  done  to  the  land  by 
the  said  road,  as  originally  constructed,  amounted  to  that  sum, 
for  the  purpose  of  proving  which  damage,  said  evidence  was 
offered. 

To  the  admissibility  of  which  evidence,  the  defendants  ob- 
jected, upon  the  several  grounds  following : 

The  defendant,  by  its  counsel,  objects  to  the  admissibility 
of  the  evidence  offered  by  the  plaintiffs,  to  prove  the  damage 
done  to  their  land  by  the  original  location  of  the  defendants* 
railroad. 

1st.  Because  the  action  (as  appears  from  the  plaintiffs'  de- 
claration,) is  brought  to  recover  damages  for  changing  the 
location  of  the  railroad,  which,  heretofore,  was  constructed 
through  the  land  of  the  plaintiffs,  and  if  they  are  entitled  to 
recover  any  thing,  the  measure  of  damages  is  the  injury  in- 
flicted by  such  change,  and  not  what  may  have  been  suffered 
from  the  first  location  of  the  road. 

2nd.  Because,  if  proof  is  admissible  of  the  damage  sus- 
tained by  the  original  location  and  construction  of  the  rail- 
road of  the  defendant  upon  the  lands  of  the  plaintiffs,  then 
that  the  inquisition  of  damages  upon  said  land,  in  the  lifetime 
of  their  ancestor  T.  C.,  taken  and  returned  to  Baltimore  coun- 
ty court,  and  by  it  confirmed,  and  which  has  been  given  in 
evidence  by  the  plaintiffs,  is  conclusive  as  to  the  amount  of 
such  damages. 

3rd.  Because,  if  proof  of  such  damage,  other  than,  or  in 
addition  to,  said  inquisition,  is  admissible,  the  evidence  so 
offered  is  not  the  best  which  the  nature  of  the  case  admits. 

The  court  (R.  B.  MAGRUDER,  A.  J.,)  refused  to  sustain  said 
objections,  and  the  evidence  was  admitted  accordingly,  and 
went  to  the  jury.  The  defendants  excepted. 

2ND  EXCEPTION.  The  defendants  then,  to  support  the  issue 
on  their  part,  offered  in  evidence,  that  on  the  1st  January  1838, 


OF  MARYLAND.  33 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 

under  the  supplement  to  their  charter  as  proved,  they  had  re- 
constructed off  the  lands  of  the  plaintiffs,  and  at  the  distance 
of  about  two  hundred  yards  from  its  old  location  thereon,  all 
that  portion  of  their  rail  road  which  had  been  originally  locat- 
ed on  the  lands  of  the  plaintiffs,  and  had  completed  and  were 
using  and  travelling  the  same,  and  that  said  rail  road,  as  so 
re-constructed,  was  of  equal  benefit  and  convenience  to  the 
said  plaintiffs,  as  it  had  been  where  originally  constructed  ; 
and  further  proved  that  the  parcel  of  land  described  in  the 
proceedings  of  condemnation,  given  in  evidence  :by  the  plain- 
tiffs, had  been  .in  the  possession  of  tb.e  plaintiffs  from  the  time 
of  the  i Q  construction  of  said  rail  road,  and  was  claimed  and 
admitted  ^o  Belong  to  them  ;  and  further  gave  in  evidence, 
that  the  .sa.nxe,  .at  an  .expense  of  not  more  than  five  hundred 
dollars, .might  b,e  rendered  as  .valuable  for  cultivation,  as  it  had 
been  before  the  original  Construction  of  the  rail  road  thereon. 

Thje, defendants  then  prayed  the  court  to  instruct  the  jury 
as  follows : 

1st,  That  the  plaintiffs  are  not  entitled  to  recover  in  this 
action,  Because  the  altered  Iqcation  of  the  rail  road  through 
the  land  of  the  plaintiffs,  though  it  has  removed  the  same  from 
said  land,  has  been  by  authority  of,  and  pursuant  to,  and  with- 
in the  provisions  of  the  act  of  Assembly  of  18'45,  ch.  371, 
entitled  a  further  supplement  to  the  act  entitled,  an  act  to 
incorporate  the  B.  #  S.  R.  $.  Co. 

2nd.  That  the  plaintiffs  are  not  entitled  to  recover  in  this 
action  for  the  removal  from  their  land  of  the  rail  road  of  the 
defendant,  unless  they, find  some  actual  damage  to  the  plain- 
tiffs, growing  out  of  such  removal. 

3rd.  That  if  the  plaintiffs  are  entitled  to  recover  in  this 
action,  the  measure  of  the  damages  to  be  awarded  them,  is 
the  damage  sustained  by  them,  in  having  the  rail  road  of  the 
defendants  in  its  present  position,  instead  of  having  it  upon  its 
original  location  on  their  land,  and  that  if  the  jurors  find  the 
plaintiffs  to  have  sustained  no  injury  from  such  change,  then 
that  they  are  not  entitled  to  recover. 
5  v.2 


34  CASES  IN  THE  COURT  OF  APPEALS 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 


The  plaintiffs  likewise  prayed  the  court  for  other  instructions, 
as  follows  : 

The  plaintiffs  ask  the  court's  instruction  to  the  jury,  that 
they  are  entitled  to   recover  the  damage  done  to   the  land 
and  other  property  of  the  plaintiffs,  by  the  original  location  of 
the  defendants  road  over  the  same,  and  the  abandonment  of 
such  location  at  the  time  of  such  abandonment,  provided,  the 
jury  shall  find  such  damage,  location  and  abandonment,  and 
also,  that  the  present  location  of  said  road  is  on  the  eastern 
side  of  Jones'  Falls,  entirely  off  of  the  plaintiffs*  land,  with- 
out any  deduction  whatever  for  the  benefit  or  advantage  which 
the  jury  may  find  from  the  evidence,  the  plaintiffs  derive  from 
the  present  location  of  defendants  road.     The  plaintiffs  in  this 
case  claim,  as  a  measure  of  damages,  to  recover  what  from  the 
evidence  in  the  cause  the  jury  may  find  to  have  been  the  value 
of  the  land  originally  taken  under  the  condemnation  offered  in 
evidence  by  the  plaintiffs,  and  such   other  of  the  land  as  was 
directly  injured  by  the  making  of  said  road,  at  the  time  the 
defendants  totally  abandoned  the  said  location,  and  made  and 
used  the  one  on  the  western  side  of  the  Falls  off  the  plaintiffs 
land,  if  the  said  land  had  never  been  taken  by  the  defendants, 
less  what  the  jury  may  find  to  be  the  value  to  the  plaintiffs  of 
said  lands  at  the  time  of  such  final  abandonment ;  and  for  the 
purpose  of  proving  said  facts,  they  offered  in  evidence  to  the 
jury,  that  twenty  acres  of  the  said  land,  worth  $200  an  acre, 
were  by  said  first  location,  and  the  making  of  said  road,  ren- 
dered totally  valueless,  except  for  the  purpose  of  said  road, 
and  as  evidence  thereof,  offered  to  prove  by  a  competent  wit- 
ness, Capt.  De  La  Roche,  as  civil  engineer,  who  had  carefully 
examined  said  part  of  said  road,  that  to  restore  the  said  land 
to  its  said  original  value  of  $200  an  acre,  would  cost  at  least 
$5,000. 

The  court  (R.  B.  MAGRUDEB,  A.  J.)  refused  to  instruct  the 
jury  as  prayed,  and  gave  the  following  direction  : 

If  the  jury  shall  find  that  the  defendants  originally  located 
their  rail  road  through  the  lands  of  the  plaintiffs,  and  made  the 
embankments  and  excavations,  and  completed  and  used  the 


OF  MARYLAND.  35 


B.  and  S.  Rail  Road  Co.  »».  Compton  and  others. — 1844. 

said  road  in  the  manner  set  forth  in  the  evidence,  and  that 
defendants  then  abandoned  the  said  road,  and  shall  also  find 
that  the  present  location  of  the  road  is  on  the  eastern  side  of 
Jones'  Falls,  entirely  off  the  plaintiffs  land,  then  the  plaintiff 
are  entitled  to  recover  the  damage  done  to  the  land  and  other 
property  of  the  plaintiffs,  by  the  original  location  of  the  de- 
fendants' road  through  and  over  the  same,  without  any  de- 
duction whatever  for  any  benefit  or  advantage  which  the  jury 
may  find  from  th«  evidence,  the  plaintiff  derived  from  the  pre- 
sent location  of  the  road. 

And  the  court  further  instruct  the  jury,  that  the  price  paid 
by  the  plaintiffs  for  the  benefit  of  the  road,  as  originally  located, 
or  the  amount  which  was  charged  to,  or  assessed  upon,  the 
plaintiffs,  at  the  time  of  the  taking  of  the  inquisition  given  in 
evidence  in  this  cause,  as  benefit  resulting  lo  the  plaintiffs  from 
the  location  of  the  road  through  his  land,  and  which  was  de- 
ducted by  the  jury  who  made  the  inquisition  from  the  whole 
amount  of  damage  done  to  the  land  and  other  property  of  the 
pbintiffs  by  said  original  location,  if  the  jury  shall  find  from 
the  evidence  such  price  or  assessment  and  deduction,  together 
with  legal  interest  thereon,  from  the  time  of  the  abandonment 
of  the  road  by  the  defendants,  is  the  proper  rule  to  regulate 
the  jury  in  estimating  the  damages  sustained  by  the  plaintiffs. 

To  which  direction,  as  given  by  the  court,  and  the  refusal 
of  the  prayers  offered  on  their  part,  the  defendants  excepted. 

SRD  EXCEPTION.  After  the  parties  to  this  cause  had  gone 
before  the  jury  under  the  direction  of  the  court,  as  stated  in 
the  second  bill  of  exceptions,  the  defendants,  by  their  counsel, 
insisted  that  the  jury  were  entitled  to  take  into  their  estimate 
of  damages,  the  sum  for  which  the  lands  of  the  plaintiffs, 
occupied  by  the  road,  as  originally  constructed,  might  be  ren- 
dered as  valuable  for  cultivation  as  they  had  been  prior  to  such 
original  construction,  and  were  not  bound  to  consider  said 
land  as  totally  destroyed,  to  which  the  plaintiffs  objected  as 
contrary  to  the  true  construction  of  the  direction  aforesaid,  and 
thereupon  the  court  decided,  that  by  the  true  construction  of 
said  direction,  the  jury  were  bound  to  consider  said  land  as 
wholly  destroyed.  The  defendants  excepted. 


3(5  CASES  1I\  THE  COURT  OK  APPEALS 


B.  and  S.  Rail  Road  Co.  vs.  Compton  and  others. — 1844. 

The  judgment  being  against  the  Baltimore  and  Sus.  R.  R. 
Company,  they  prosecuted  the  present  appeal. 

The  cause  was  argued  before  BUCHANAN,  C.  J.,  DORSEY, 
CHAMBERS  and  SPENCE,  J. 

By  B.  C.  PRESTMAN  and  CAMPBELL  for  the  appellants,  and 
By  T.  P.  SCOTT  and  REVERDY  JOHNSON  for  the  appellees. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

The  testimony  offered  by  the  plaintiffs,  in  the  first  bill  of  ex- 
ceptions on  the  part  of  the  defendants,  to  prove  the  damage 
done  by  the  location  and  construction  of  the  rail  road  through 
their  lands,  was  obnoxious  to  the  objection  taken  to  its 
reception.  All  questions  in  relation  to  such  damage  were 
terminated  and  concluded  by  the  inquisition  previously  found 
by  the  jury.  They  formed  no  part  of  the  issue  then  on  trial. 
The  question  to  be  tried  by  the  jury  empannelled  in  the  county 
court,  was  the  extent  of  the  injury  which  resulted  to  the  plain- 
tiffs by  the  abandonment  arid  discontinuance  of  the  railway  on 
thc-ir  lands,-  arid  its  location  and  construction  on  the  lands  of 
another  person.  Trie  county  court  therefore  erred  in  admitting 
the  testimony  thus  objected  to  by  the  defendant. 

A  majority  of  this  court  are  of  opinion  that  the  county  court 
were  right  in  rejectirig  the  defendants  first  prayer,  in  his  se- 
cond bill  of  exceptions ;  that  the  plaintiffs  could  not  recover, 
inasmuch  as  the  removal  of  the  railway  complained  of  was 
made  under  the  authority  and  pursuant  to  the  provisions  of  the 
act  of  Assembly  of  1835,  ch.  371.  From  this  opinion  I  have 
dissented  ;  but,  as  no  reasons  have  been  assigned  in  support 
of  it,  I  do  not  deem  it  necessary  to  slate  the  grounds  of  my 
dissent. 

The  defendant's  second  prayer  in  the  same  exception,  to 
wit:  "that  the  plaintiffs  are  not  entitled  to  recover  in  this 
action,  for  the  removal  from  their  land,  of  the  rail  road  of  the 
defendant,  unless  they  find  some  actual  damage  to  the  plain- 
tiffs growing  out  of  such  removal ;"  and  his  third  prayer,  to 
wit :  "that  if  the  plaintiffs  are  entitled  to  recover  in  this  action 


OK  MAUYLAMJ.  37 


Aldridge,  executor  of  Higdon,  vs.  Boswell. — 1844. 

the  measure  of  the  daniage  to  be  awarded  them,  is  the  damage 
sustained  by  them  in  having  the  rail  road  of  the  defendant  in 
its  present  position,  instead  of  having  it,  upon  its  original  lo- 
cation on  their  land  ;  and  that  if  the  jurors  find  the  plaintiffs 
to  have  sustained  no  injury  from  such  change,  then  that  they 
are  not  entitled  to  recover ;"  we  think  both  ought  to  have 
been  granted  :  and  that  in  failing  to  do  so,  the  county  court 
erred. 

In  the  third  bill  of  exceptions,  the  county  court  was  right  in 
its  construction  of  the  instruction  it  had  given  to  the  jury  as 
stated  in  the  second  bill  of  exceptions.  The  error  of  that  court 
consisted  in  its  giving  the  instruction,  not  in  its  interpreta- 
tion of  it. 

This  court  concur  with  the  county  court  in  its  construction' 
of  its  instruction  as  slated  in  the  third  bill  of  exceptions.  And 
a  majority  of  this  court  approve  of  the  refusal  of  the  county 
court  to  grant  the  defendant's  first  prayer  in  his  second  bill  of 
exceptions.  But  this  court,  dissenting  from  the  county  court's 
decision  in  the  first  bill  of  exceptions,  and  in  its  refusal  W 
grant  the  defendants'  second  and  third  prayers  in  his  second 
bill  of  exceptions,  and  from  its  instruction  given  in  that  ex- 
ception to  the  jury,  reverse  its  judgment. 

LET  A  PROCEDENDO  ISSUE; 


ANDREW  ALDRIDGE,  EXECUTOR  OF  B.  D.  HIGDON,  vs.  JOHN 
T.  BOSWELL. — Jane  1844. 

Where  a  testator  devised  all  the  rest,  residue  arid  remainder  oThis  estate  unto' 
all  the  children  of  his  sister  and  his  late  brother,  that  are  now  in  existence, 
to  be  equally  divided  amongst  them  per  capita,  share  and  share  alike,  one 
of  his  neices  alive  at  the  date  6f  the  will,  married,  and  died  before  the  tes. 
tator.  The  sister  and  late  brother  had  each  five  children  alive  at  the  date 
of  the  will.  HELD  :  that  the  surviving  husband  of  the  deceased  neice, 
was  entitled  to  one-tenth  of  the  testator's  personal  estate  in  the  hands  off 
his  executor. 

APPEAL  from  the  Orphans  court  of  Baltimore  county. 


38  CASES  IN  THE  COURT  OF  APPEALS 

Aldridge,  executor  of  Higdon,  vs.  Boswell. — 1844. 

On  the  4th  October  1842,  the  appellee  filed  his  petition  al- 
leging, that  on  the  28th  February  1830,  the  late  Benjamin  D. 
Higdon  of  Baltimore  city,  duly  made  and  published  his  last 
•will  and  testament,  by  which  said  last  will  and  testament, 
after  making  several  specific  bequests,  he  devised  the  residue 
of  his  estate  in  the  following  manner,  to  wit :  "I  give,  de- 
vise and  bequeath  all  the  rest,  residue  and  remainder  of 
my  estate  and  property,  real  and  personal,  not  hereinbefore 
disposed  of,  unto  all  the  children  of  my  late  brother  John 
R.  Higdon,  and  of  my  sister  Phebe  E.  Lambert ',  of  Prince 
George's  county,  that  are  now  in  existence,  to  be  equally 
divided  between  and  amongst  them  per  capita,  and  share 
and  shore  alike,  to  hold  to  them  their  heirs  and  assigns 
forever;"  and  that  by  said  will  said  testator  Higdon^  also  ap- 
pointed Andrew  Aldridge  and  Stewart  Brown,  of  the  city  of 
Baltimore,  the  executors  thereof.  Your  petitioner  further  states 
that  afterwards,  and  in  the  year  1841,  the  said  Benjamin  D. 
Higdon  died,  without  having  in  any  manner  altered  or  revoked 
said  will,  and  leaving  the  said  will  and  the  aforesaid  devise  of 
the  residue  of  his  property  unrevoked  and  in  full  force  at  his 
death,  and  that  said  will  has  been  duly  admitted  to  probate  by 
this  court;  that  letters  testamentary  thereon  have  been  granted 
by  this  court  to  Andrew  JUdridge,  the  surviving  executor. 
That  at  the  period  of  the  execution  of  said  will,  to  wit,  on 
the  28th  February  1830,  there  were  then  in  existence  the  fol- 
lowing children  of  the  said  brother  John  S.  Higdon,  and  the 
said  sister  Phebe  E.  Lambert,  mentioned  in  the  aforesaid  resi- 
duary clause  of  said  will,  to  wit :  the  following  five  children 
of  his  said  brother  John  S.  Higdon,  namely,  John  B.  Higdon  ; 
Ann,  who  intermarried  with  Charles  A.  Ely  ;  Elizabeth,  who 
intermarried  with  Urbane  B.  Oglesby ;  Augusta,  who  inter- 
married with  Stoddard  W.  Smith;  and  Mary  Jane,  who 
intermarried  with  Matthew  JV.  Shields;  and  the  following 
children  of  his  said  sister  Phebe  E.  Lambert,  to  wit:  Benja- 
min H.  Lambert,  John  J.  Lambert,  Elizabeth,  the  wife  of  Peter 
D.  Hatton,  Nancy  who  intermarried  with  John  B.  Spalding, 
and  Mary  or  Polly  Lambert,  who  was  the  wife  of  your  peti- 
tioner. That  the  said  Mary  or  Polly  Lambert,  one  of  the  said 


OF  MARYLAND.  39 


Aldridge,  executor  of  Higdon,  vs.  Boswell. — 1844. 

ten  children  of  the  said  brother  and  sister  of  t!  e  said  testator, 
in  existence  at  the  period  of  the  execution  of  his  aforesaid 
will,  became  the  wife  of  your  petitioner  in  the  year  1831,  and 
so  continued  until  death,  in  the  year  1833. 

Your  petitioner  further  states,  that  by  virtue  of  the  said  will, 
and  of  the  acts  of  Assembly  in  such  case  provided,  he  is,  as 
he  conceives  and  is  advised,  entitled,  as  the  husband  of  the 
said  Mary  Lambert,  to  have  and  receive  of  the  said  executor 
her  share,  or  the  one-tenth  part  of  the  residue  of  the  personal 
estate  of  the  said  Benjamin  D.  Higdon,  but  that  the  said  ex- 
ecutor declines  paying  over  to  him,  or  accounting  to  him,  for 
said  share,  except  under  the  order  of  this  couit. 
Your  petitioner  therefore  prays,  &c. 

The  will  of  Benjamin  D.  Higdon,  of,  &c.,  devised  as  fol- 
lows, viz : 

I  give  unto  my  friend  and  partner  Mr.  Andrew  Aldridge, 
my  pew  in  St.  Paul's  church,  and  also  the  sum  of  one  thou- 
sand dollars,  in  trust  for,  &c. 

To  Mrs.  Ann  Elizabeth  Higdon,  of,  &c.  widow  of  my  late 
brother  John  S.  Higdon,  I  give  and  bequeath  the  sum  of  five 
hundred  dollars. 

I  will  and  desire  that  ray  executors  hereinafter  named, 
place  in  the  hands  of  my  nephew  Benjamin  H.  Lambert,  of 
Alexandria,  in  the  District  of  Columbia,  without  requiring  of 
him  any  security  therefor,  the  sum  of  $1,000 ;  the  interest,  &c. 
I  give  and  bequeath  to  my  aforesaid  friend  Jlndrew  Al- 
dridge, the  sum  of  three  hundred  dollars,  in  trust,  to  be  by  him 
applied  to  the  use  and  benefit  of  the  Episcopal  Sunday  school, 
very  lately  incorporated,  but  by  what  particular  name  I  do  not 
know. 

I  give,  devise  and  bequeath  all  the  rest,  residue  and  remain- 
der of  my  estate  and  property,  real  and  personal,  not  herein 
before  disposed  of,  unto  all  the  children  of  my  late  brother 
John  S.  Higdnn,  and  of  my  sister  PhebeE.  Lambert,  of,  &c., 
that  are  now  in  existence,  to  be  equally  divided  between  and 
amongst  them,  per  capita,  share  and  share  alike:  to  hold  to 
them,  their  heirs  and  assigns  forever. 


40  CASES  LN  TH:<:  COUIIT  OF 


Aldridge,  executor  of  Higdon,  t?«.  Boswell.  —  1844. 

Whereas,  Peter  D.  Hatton,  who  married  one  of  the  (laugh- 
ter? of  my  aforesaid  sister  Lambert,  stands  indebted  to  the  firm 
of  Aldridgefy  Higdon,  between  two  and  three  hundred  dollars 
upon  a  note,  which  I  desire  to  be  charged  to  me  on  the  book 
of  the  concern,  but  that  the  amount  thereof  be  considered  as 
.constituting  a  portion  of  the  residuum  of  my  estat.e,  and  be 
deducted  from  that  part  or  share  thereof  which  my  neice,  the 
wife  of  said  Peter  D.  Nation,  shall  appear  to  be  entitled  to  in 
jtJve  distribution  of  such  residuum. 

'For  the  purpose  of  division  and  final  settlement  of  my  es- 
tate, I  authorise  anJ  require  my  executors  to  sell  and  dispose 
of,  either  publicly  or  privately,  as  to  them  may  seem  fit,  my 
interest,  being  a  moiety,  of  and  in  th.e  house  and  lot  situate  on 
the  south  side  of  Baltimor.e  street,  between  South  street  and 
Tripolefs  alley,  in  the  aforesaid  city  of  Baltimore,  owned  by 
Mr.  Aldridge  and  myself,  and  on  receipt  of  the  consideration 
.money  therefor,  to  execute  a  good  and  valid  conveyance  to 
the  purchaser  or  purchasers  of  such  interest,  to  hold  the  same 
;to  him,  her  or  them,  their  heirs  and  assigns  forever. 

And  lastly  I  constitute  and  appoint  my  aforesaid  friend  and 
partner  .Andrew  Aldridge,  and  my  friend  Stewart  Brown,  of  the 
,city  of  Baltimore,  executors  of  this  my  last  will  and  testament, 
which  I  again  declare  to  be  my  last. 

In  witness  whereof,  I,  Ahe  said  Benjamin  D.  Higdon,  have 
hereto  set  my  hand  and  seal,  this  twenty-eighth  day  of  Febru- 
ary, in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty. 

The  answer  of  Andrew  Aldridge  executor,  Alleged  that  he 
admits  that  the  said  deceased  executed  his  last  will  and  testa- 
ment in  his  lifetime,  as  is  stated  in  said  petition,  and  devised 
the  residuum  of  his  estate  to  the  children  of  his  late  brother 
John  S.  Higdon  and  his  sister  phebe  E.  Lambert,  i\\en  in  ex- 
•istence,  in  the  manner  in  said  petition  mentioned,  and  thereby 
.appointed  your  respondent  and  the  late  Stewart  Brown,  ex- 
ecutors thereof,  and  that  letters  testamentary  were  granted  to 
respondent  alone,  the  said  Brown  having  departed  this  life 
before  the  death  of  the  said  testator;  that  said  testator  de- 


OF  MARYLAND.  41 


Aldridge,  executor  of  Higdon,  vs.  Boswell. — 1844. 

parted  this  life  without  having  revoked  said  will  and  testament, 
that  the  same  has  been  duly  admitted  to  probat,  and  that  he 
believes  the  copy  thereof  exhibited  with  said  petition,  marked 
A,  to  be  a  true  copy  of  said  will  and  testament. 

Your  respondent  further  states,  that  he  has  always  under- 
stood that  at  the  date  of  said  will  and  testament,  there  were  in 
existence  of  the  children  of  testator's  brother  and  sister,  ten 
persons,  five  of  each  branch,  but  he  has  no  other  knowledge 
thereof,  than  that  he  is  acquainted  with  or  has  seen  some  of 
them,  but  not  all;  that  he  has  never  seen  Mary  or  Polly  Lam- 
bert, stated  ircsaixl  petition'  to  have  Been  the  wife  of  petitioner^ 
and  does  not  know  when  he  died,  or  was  married  to  petitioner,' 
and  therefore  leaves  him  to  prove  that  she  was  a  niece  of  the 
testator  in  existence  at  the  date  of  the  Said  will  and  testament,- 
and  that  she  afterwards  became  the  wife  of  petitioner,  and 
died  as  in  said  petition  is  stated.     That  having  been  warned 
by  several  of  the  residuary  devisees,  not  to  pay  any  part  of  the' 
estate  of  the  deceased  to  said  petitioner,  on  the  allegation-' 
that  he  is  not  entitled  to  any  part  thereof;  your  respondent 
therefore  declines  paying  the  same  to  petitioner,  until  he  shall' 
have  fully  proved  his  rights  thereto. 

On  the  18th  July  1843,  the  orphans  Court  afte^r  proof  taken,; 
decreed  that  the  said  John  T.  Boswell,  who  intermarried  with 
Mary  or  Polly  Lambert,  one  of  the  children  of  Phebe  E.  Lam- 
bert, sister  of  the  said  deceased,  is  entitled  by  virtue  of  his' 
marital  rights  to  one-tenth  part  of  the  residue  of  the  personal 
estate  of  the  said  Benjamin  D.  Uigdon,  deceased,  in  the  hands 
of  the  said  executor,  and  payment  accordingly. 

The  executor  appealed  to  this  court. 

The  cause  was  ai'gued  before  BUCHANAN,  C.  J.,  STEPHEN/ 
ARCHER,  DORSE*,  and  CHAMBERS,  J. 

By  S.  I.  DONALDSON  and  REVERDV  JOHNSON  for  the  ap- 
pellants, who  waived  all  objections  as  to  want  of  parties,  &c. 
By  McMAHON  for  the  appellees/ 

BY  THE  COURT—  JUDGMENT  AFFIRMED. 

6         v.2 


42  CASES  IN  THE  COURT  OF  APPEALS 

Hannon  et  al  vs.  The  State,  use  of  Robey  and  wife. — 1844. 


WALTER  W.  HANNON  AND  OTHERS,  vs.  THE  STATE,  USE  OF 
WILLIAM  G.  ROBEY  AND  GRACE  ANN,  HIS  WIFE. — June 
1844. 

Where  no  question  is  jaised  upon  the  admissibility  as  evidence  of  a  paper 
road  in  the  county  court  to  tho  jury,  this  court,  under  the  act  of  1825,  ch. 
117,  will  not  consider  that  question. 

Where  the  defendant  pleaded  general  performance,  and  after  tho  plaintiff  re 
plied  assigning  a  breach  of  the  condition  of  a  bond,  the  defendant  rejoined 
generally,  on  which  the  issue  was  made  up.  This  rejoinder  under  such 
circumstances  can  only  be  considered  a  general  traverse  of  the  plaintiff's 
replication.  It  only  puts  in  issue  the  facts  stated  in  the  replication. 

In  an  actions  on  a  testamentary  bond,  the  equitable  plaintiff  claimed  under  a 
residuary  clause  in  the  will  of  H,  executed  in  1838,  and  admitted  to  probat 
in  the  same  year,  one-third  of  the  residue  of  the  testator's  personal  estate 
of  which  he  might  die  possessed.  Upon  an  issue  denying  the  facts  of  the 
replication,  tho  defendant  gave  in  evidence  an  indenture  made  by  the  tes- 
tator in  the  year  1832,  conveying  to  his  executor,  the  defendant,  one-half 
of  all  his  personal  property  at  which  he  might  die  possessed,  and  which 
had  also  been  admitted  to-  probat  by  the  orphans  court  as  a  testamentary 
paper  of  H.  HELD  :  that  the  indenture  was  evidence,  material,  competent, 
and  necessary  to  the  finding  of  a  proper  verdict  on  the  matters  in  contro- 
versy, as  a  part  of  the  will  of  H. 

This  court,  in  reviewing  the  judgments  of  the  county  courts,  cannot  exercise 
the  powers  of  a  court  of  probat  as  to  last  wills  and  testaments  of  person  al 
property. 

When  the  orphans  court  admits  two  papers  of  different  dates  to  probat  as 
testamentary  instruments  of  the  same  party,  and  holds  that  one  is  not  a 
revocation  of  the  other,  this  court  will  presume  that  the  orphans  court 
acted  correctly,  and  not  disturb  their  judgment  when  such  papers  are  inci- 
dentally offered  in  evidence. 

The  orphans  court  may  receive  evidence  of  an  error  in  the  date  of  a  will 
offered  for  probat. 

Where  the  plaintiff  assigned  his  breaches  in  a  special  replication,  it  is  the 
duty  of  the  defendant  to  rejoin  specially,  and  a  general  rejoinder  of  gene- 
ral performance  to  such  a  plea,  to  give  it  any  operation  at  all,  can  only  be 
considered  as  a  general  traverse  of  the  facts  of  the  replication. 

APPEAL  from  Charles  County  Court. 

This  was  an  action  of  Debt,  commenced  on  the  13th  Janu- 
ary 1840,  upon  the  bond  of  the  appellants,  executed  18th 
September  1838,  with  condition  that  Walter  W.  and  Henry 
M.  Hannon,  should  well  and  truly  perform  the  office  of  execu- 


OF  MARYLAND.  43 


Han nou  et  al  «*.  The  State,  use  of  Robey  and  wife. — 1844. 

tors   of  Walter  W.   Hannon,  senior,  late  of  Charles  county, 
deceased,  according  to  law. 

To  the  declaration  on  this  bond,  the  appellants  pleaded  per- 
formance generally  by  the  executors,  and  the  plaintiff  below 
replied,  that  the  said  W.  W.  H.,  did  in  his  lifetime,  to  wit,  on 
the  16th  day  of  May  1838,  make,  and  in  due  form  of  law 
sign  and  execute  his  last  will  and  testament  in  writing,  in 
the  words,  letters  and  figures  following,  to  wit : 

In  the  name  of  God,  amen.  I,  Walter  W.  Hannon,  Sr.>  of, 
&c.  After  my  debts  and  funeral  charges  are  paid,  and  after  sev- 
eral devises  of  real  and  personal  property,  the  testator  proceed- 
ed as  follows :  Item.  I  also  give  and  bequeath  to  my  said 
daughter  Grace  Ann  Robey,  one-third  part  of  my  personal 
property,  I  die  possessed  of,  and  not  otherwise  willed  or  dis- 
posed of.  Item.  I  give  and  bequeath  to  each  of  my  grand 
children,  Francis  Oscar  and  Martha  Jinn  Hannon,  children 
of  my  son  William  H.  Hannon,  $250,  to  be  paid  to  them  on 
their  arrival  to  lawful  age,  and  no  more.  And  lastly,  I  do 
hereby  constitute  and  appoint  my  two  sons,  Walter  W.  and 
Henry  M.  Hannon,  my  executors  of  this  my  last  will  and 
testament,  revoking  and  annulling  all  former  wills  by  me  here- 
tofore made,  ratifying  and  confirming  this  and  none  other,  to 
be  my  last  will  and  testament.  In  testimony  whereof,  I  have 
hereunto  set  my  hand  and  affixed  my  seal,  this  16th  day  of 
May,  in  the  year  of  Christ  1838. 

The  replication,  after  setting  out  the  probat  of  the  will  be- 
fore the  orphans  court  and  certificate  thereof,  alleged  that  after 
making,  signing,  and  executing  the  said  last  will  and  testament, 
the  said  Hannon  died,  at,  &c.,  by  which  said  will,  W.  W.  H. 
and  H.  M.  H.,  were  appointed  executors  thereof;  by  effect  and 
virtue  of  which  said  last  will,  the  said  Grace  Jinn  therein 
mentioned,  who  had  previous  to  the  death  of  said  testator,  in- 
termarried with  the  said  William  G.  Robey,  was  entitled  to 
one-third  part  of  the  personal  estate  of  the  said  testator,  and 
one-fourth  of  the  other  two-thirds,  as  one  of  the  heirs  of  said 
Hannon,  the  said  Walter  W.  having  died,  leaving  as  his  heirs 
and  representatives,  two  sons,  to  wit,  Walter  W.t  Henry  M., 


44  CASES  IN  THE  COURT  OF  APPEALS 

Hannon  et  al  vs.  The  State,  use  of  Robey  and  wife. — 1844. 

the  said  Grace  Ann,  two  children  of  a  deceased  son,  William 
H.  Hannon,  to  wit,  Francis  0.  and  Martha  Jinn  Hannon, 
each  entitled  to  one-fourth  part  of  said  two-thirds,  which  re- 
mained after  all  legacies,  bequests  and  charges  by  the  said  will 
before  particularly  and  specifically  devised,  together  with  all 
debts  due  and  owing  from  the  said  testator,  and  all  necessary 
charges,  expenses,  allowances  and  disbursements  upon  the 
administration  of  the  estate  of  the  said  testator,  were  paid, 
satisfied,  discharged,  and  allowed  to  be  paid  and  delivered  to 
the  said  Grace  Jinn,  by  said  executors.  And  the  said  state  in 
fact  saith,  that  on  the  20th  day  of  November,  in  the  year  1838, 
in  the  county  aforesaid,  there  remained  in  the  hands  of  said 
executor  the  sum  of  $7,035.26,  clear  personal  estate,  which 
was  of  the  said  Walter  W.,  after  all  payments,  allowances, 
disbursements,  specific  and  particular  legacies  and  charges 
whatsoever,  deducted  to  be  paid  and  administered  by  the  said 
executors  as  aforesaid,  according  to  law,  and  the  true  intent 
and  meaning  of  the  said  last  will,  of  which  sum  of  $7,035.26, 
the  said  William  G.  Robey  and  Grace  Jinn,  his  wife,  were 
and  still  are  entitled  to  one-third,  amounting  to  the  sum  of 
$2,345.08^,  and  to  one-fourth  of  the  residue  or  other  two 
thirds,  amounting  to  the  sum  of  $1,175.04^,  and  in  the  whole 
to  the  sum  of  $3,520.52,  according  to  the  tenor  and  effect  of 
the  said  last  will  and  testament.  And  the  said  state  further  in 
fact  saith,  that  the  said  executors  did  not,  to  wit,  at  the  county 
aforesaid,  render  any  final,  just  and  true  account  of  and  con- 
cerning their  administration  of  the  estate  of  the  said  Walter 
W.  Hannon,  Sr.  to  the  justices  for  the  time  being,  of  the 
orphans  court,  to  be  examined  and  adjudged,  and  each  parcel, 
part  and  portion  of  the  said  estate  so  owing  and  belonging  to 
said  William  G.  and  Grace  Ann,  his  wife,  under  and  in  virtue 
of  the  said  last  will  and  testament  of  the  said  Walter  W.,  and 
the  laws  of  the  land,  and  also  pay  and  satisfy  to  the  said 
William  G.  and  Grace  Jinn,  his  wife,  the  said  sum  of  $3,520.- 
52,  or  any  part  thereof;  and  also  that  lh.e  said  .executors, 
although  often  thereunto  required  by  the  said  William  G.  and 
Grace  ./?.,  his  wife,  did  not  pay  or  satisfy  to  the  said  Wil- 


OF  MARYLAND.  45 


Harmon  et  al  vs.  The  State,  use  of  Robey  and  wife. — 1844. 


Ham  G.  and  Grace  A.,  the  said  sum  of  $3,520.52,  or  any 
part  thereof,  but  the  same  or  any  part  to  pay,  or  in  any  man- 
ner satisfy  to  the  said  William  G.  and  Grace  St.,  his  wife, 
the  said  executors  have  hitherto  altogether  refused,  to  wit,  at, 
&c.,  all  of  which  the  said  state  is  ready  to  verify;  where- 
upon it  prays,  &c. 

To  this  the  defendants  rejoined,  that  the  said  W.  W.  H.  and 
H.  M.  H.)  in  the  condition  of  the  writing  obligatory  aforesaid 
mentioned,  from  the  time  of  making  the  said  writing  obliga- 
tory aforesaid,  have  well  and  truly  observed,  performed,  ful- 
filled and  kept  all  and  singular  the  matters  and  things  to  be 
done  and  performed,  according  to  the  condition  of  the  said 
writing  obligatory  aforesaid,  and  did  make  a  true  and  perfect 
inventory  of  all  and  singular  the  goods  and  chattels,  rights  and 
credits  of  the  said  Walter  W.  Harmon,  Sen.,  deceased,  in  the 
condition  of  the  said  writing  obligatory  mentioned,  and  of  this 
the  said  Waller  W.  Hannon,  Henry  M.  Hannon,  Samuel  H. 
Beall  and  Peter  Dent,  put  themselves  upon  the  country. 

On  this  rejoinder,  the  issue  was  made  up,  and  the  jury  found 
a  verdict  for  the  plaintiff. 

Al  the  trial  of  this  case,  the  plaintiffs  to  support  the  issues 
on  their  part  joined,  read  in  evidence  to  the  jury,  the  will  of 
Walter  W.  Hannon,  and  the  probat  thereof  from  a  certified 
copy  of  the  same,  under  the  seal  of  the  orphans  court  of 
Charles  county  ;  and  also  read  to  the  jury,  the  inventory  and 
accounts  of  the  administrators  of  the  personal  estate  of  Walter 
W.  Hannon,  Sen.,  also  duly  certified  as  aforesaid. 

The  defendants  then  read  in  evidence  on  their  part,  an  in- 
strument of  writing,  executed  by  the  testator  Walter  W.  Han- 
non, 8th  September  1832,  and  proved  that  said  paper  had  been 
admitted  as  a  testamentary  paper  to  probat,  and  recorded 
among  the  records  of  the  Orphans  court  of  Charles  county. 

This  indenture  made  this  8th  day  of  September,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  thirty-two,  be- 
tween Walter  W.  Hannon,  Sen.,  of  Charles  county,  in  the  State 
of  Maryland,  of  the  one  part,  and  Walter  W.  Hannon,  Jr., 
and  Henry  M.  Hannon,  sons  of  the  said  Walter  W.  Hannon,  Sr., 


46  CASES  IN  THE  COURT  OF  APPEALS 


Hannon  et  al  vs.  The  State,  use  of  Robey  and  wife. — 1844. 


of  the  county  and  State  aforesaid  of  the  other  part,  witnes- 
seth  :  that  the  said  Walter  W.  Hannon,  Sen.,  as  well  for  and 
in  consideration  of  the  natural  love  and  affection  which  he 
the  said  Walter  W.  Hannon,  Sen.,  hath  and  beareth  unto  the 
said  Walter  W.  Hannon,  Jr.  and  Henry  H.  Hannon,  as  also  for 
the  belter  maintenance,  support,  livelihood  and  preferment  of 
them  the  said  Walter  W.  Hannon,  Jr.,  and  Henry  M.  Hannon, 
hath  given,  granted,  aliened,  enfeoffed  and  confirmed,  and  by 
these  presents  doth  give,  grant,  alien,  enfeoff  and  confirm, 
unto  the  said  Walter  W.  Hannon,  Jr.  and  Henry  M.  Hannon, 
their  heirs  and  assigns,  one-half  of  all  my  personal  estate  of 
which  I  may  die  possessed,  to  the  only  proper  use  and  be- 
hoof of  them  the  said  Waller  W.  Hannon,  Jr.  and  Henry  M. 
Hannon,  their  heirs  and  assigns  forever.  In  witness  whereof 
I  have  hereunto  subscribed  my  name  and  affixed  my  seal,  the 

day  and  year  first  before  written. 

W.  W.  HANNON,  (Seal.) 

Signed,  sealed  and  delivered  in  the  presence  of  Thomas 
Rogerson,  Thomas  L.  Lucke.it. 

STATE  OF  MARYLAND,  Charles  County,  Set:  On  this  8th 
day  of  September,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-two,  personally  appears  Walter  W.  Hannon, 
Sen.,  party  grantor,  before  the  subscribers,  two  of  the  justices 
of  the  peace  of  the  State  of  Maryland  for  Charles  county,  and 
acknowledges  the  said  within  deed  or  instrument  of  writing 
to  be  his  act  and  deed,  and  the  properly  therein  mentioned  to 
be  the  right  and  estate  of  Walter  W.  Hannon,  Jr.  and  Henry 
M.  Hannon,  party  grantees  therein  mentioned,  their  heirs  and 
assigns  forever,  according  to  the  true  intent  and  meaning  of 
the  said  deed  or  instrument  of  writing,  and  the  acts  of  As- 
sembly in  such  case  made  and  provided.  Acknowledged  be- 
fore and  certified  by  THOMAS  ROGERSON, 

THOS.  L.  LUCKETT. 

STATE  OF  MARYLAND,  Charles  County,  Set:  I  hereby 
certify  that  the  aforegoing  instrument  of  writing,  is  truly  copied 
from  one  of  the  record  books  of  the  orphans  court  for  Charles 
county. 


OF  MARYLAND.  47 


Hannon  et  al  vs.  The  State,  use  of  Robey  and  wife. — 1844. 

In  testimony  whereof,  I  have  hereunto  subscribed  ray  name, 
and  affixed  the  seal  of  said  court,  this  20th  day  of 
(Seal.)  August,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  forty-one. 

Test,  AQUILLA  BATEMAN, 

Reg.  of  Wills  for  Charles  County. 

The  defendants  then  prayed  the  oourt  to  instruct  the  jury, 
that  by  the  construction  of  said  papers  or  instruments  of  writ- 
ing, Walter  W.  Hannon  and  Henry  M.  Hannon  were  entitled 
to  one-half  of  the  balance  of  the  personal  property  of  the  in- 
testate, remaining  after  payments  of  debts  and  administration 
expenses,  and  that  Grace  Jinn  Robey,  as  legatee  under  the 
will  of  Walter  W.  Hannon,  was  only  entitled  to  one-third  of 
the  remaining  half,  which  instruction  the  court  refused  ;  but 
were  of  opinion  and  so  instructed  the  jury,  that  the  plaintiff 
was  entitled  to  one-third  of  the  balance  of  the  testator's  estate 
remaining  after  the  payment  of  the  testator's  debts  and  the 
costs  of  the  administration  and  commission  to  the  executors 
and  the  legacies  to  the  widow  of  the  testator  and  to  the  chil- 
dren of  William  H.  Hannon;  to  which  instruction  of  the 
court  (C.  DORSEY,  A.  J.,)  the  defendant  excepted. 

The  judgment  being  against  the  defendants,  they  prosecuted 
the  present  appeal. 

The  cause  was  argued  before  STEPHEN,  DORSEY,  CHAM- 
BERS and  SPENCE,  J. 

By  CHAIN  and  ALEXANDER  for  the  appellants,  and 
By  W.  H.  TUCK  for  the  appellees. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

In  support  of  the  instruction  given  by  the  county  court  to 
the  jury,  as  set  forth  in  the  bill  of  exceptions,  it  has  been  urged 
that  the  testamentary  paper  read  by  the  defendants  in  evidence 
to  the  jury  was  inadmissible  upon  the  pleadings  and  issues  in 
the  cause.  Upon  the  admissibility  of  this  paper  as  evidence, 
no  question  was  raised, in  the  court  below,  none  can  arise  here 
under  our  act  of  Assembly  of  1825,  ch.  117;  the  evidence 
now  objected  to,  went  to  the  jury  without  objection.  But  had 


48  CASES  IN  THE  COURT  OF  APPEALS 

Hannon  et  al  vs.  The  State,  use  of  Robey  and  wife. — 1844. 

the  objection  been  taken  in  the  county  court,  it  ought  to  have 
been  overruled. 

To  this  action  upon  the  testamentary  bond  the  defendants 
pleaded  general  performance  ;  to  which  plea  the  plaintiff  re- 
plies and  sets  out  in  words,  letters  and  figures,  what  he  al- 
leges to  be  the  last  will  and  testament  of  the  testator ;  and 
states  that  there  remained  in  the  hands  of  the  executors, 
after  all  disbursements  and  payment  of  debts,  legacies,  &c., 
a  balance  of  $7,035. TYff,  of  which  Grace  Ann  Robey,  as  lega- 
tee and  distributee  of  the  testator,  was  entitled  to  the  sum  of 
$3,520.TVir-  To  this  replication  the  defendants,  instead  of 
rejoining  specially  as  they  ought  to  have  done,  put  in  a  ge- 
neral rejoinder  of  general  performance  which,  according  to  the 
interpretation  given  to  such  pleadings,  in  the  loose  and  inartifi- 
cial mode  of  pleading  prevailing  in  the  first  judicial  district  of 
the  State,  means,  if  we  give  to  it  any  operation,  a  general 
traverse  of  all  the  allegations  contained  in  the  replication. 
The  rejoinder  then  puts  in  issue  the  facts,  whether  the  paper 
recited  was  the  only  true  and  last  will  and  testament  of  the 
deceased  ;  whether  the  balance  of  the  testator's  estate  was  as 
stated  in  the  replication,  and  whether  Grace  AIM,  Robey  was 
entitled  to  the  portion  thereof  which  she  therein  claims.  On 
such  issues,  it  surely  cannot  be  denied  that  the  testamentary 
paper  read  by  the  appellants,  in  evidence  to  the  jury,  was  ma- 
terial and  competent  testimony,  and  necessary  to  the  find- 
ing of  a  proper  verdict,  on  the  matter  in  controversy.  But 
it  has  been  insisted  that  this  paper  is  inadmissible  as  evidence 
as  a  part  of  the  last  will  and  testament  of  the  deceased,  be- 
cause bearing  date  in  1832,  it  is  revoked  and  annulled  by  the 
revoking  clause  of  the  testator's  will,  exhibited  by  the  plaintiff, 
which  bears  date  in  1838.  This  argument  would  be  entitled 
to  great,  if  not  conclusive  weight,  if  urged  before  the  orphans 
court,  by  which  this  paper  was  admitted  to  probat  as. part  of 
the  last  will  and  testament  of  the  deceased.  Whilst  sitting 
here  reviewing  the  judgments  of  the  county  court,  we  cannot 
exercise  the  powers  of  a  court  of  probat,  as  to  last  wills  and 
testements  of  personal  property.  What  the  orphans  court  has- 


OF  MARYLAND.  49 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

done  upon  this  subject  is  conclusive  upon  this  court,  as  far  as 
concerns  this  question  of  express  revocation.  Omnia  presu- 
munturrite  adafuisse,  and  for  aught  that  appears  to  this  court, 
it  may  have  been  satisfactorily  proved  to  the  orphans  court  that 
there  may  have  been  an  error  in  date  as  to  one  of  the  testamen- 
tary papers  admitted  to  probat,  and  that  the  one  offered  in  the 
evidence  by  the  defendants  was  of  posterior  execution;  or  that 
it  was  re-published  by  the  testator  after  the  sixteenth  of  May 
1838. 

Having  sustained  the  paper  offered  in  evidence  by  the  de- 
fendants, as  part  of  the  last  will  and  testament  of  W.  W. 
Hannon,  it  is  unnecessary  for  us  to  inquire  how  far  this  paper, 
if  rejected  as  testamentary,  would  be  operative  as  a  deed  of 
conveyance  of  one-half  of  the  personal  estate  of  which  he 
might  die  possessed. 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 


DECEMBER  TERM,  1844. 

STATE,  FOR  THE  USE  OF  JOHN  B.  WELCH  AND  WIFE,  vs. 
CALEB  M.  JONES  AND  MORDECAI  C.  JONES,  SURVIVORS 
OF  MARY  E.  FORD. — December  1844. 

The  confession  of  a  judgment,  to  be  released  on  payment  of  what  F  shall 
say  is  duo,  cannot  be  considered  as  a  reference  under  the  act  of  1778,  ch, 
21.  It  is  a  final  judgment. 

The  various  provisions  of  that  act,  all  contemplate  a  case  still  pending  in 
court,  and  awaiting  the  return  of  the  award  before  a  judgment  is  to  be 
rendered. 

The  words  payment  and  due  in  such  a  confession  import  that  a  sum  of  mo- 
ney, was  alone  in  the  view  of  the  patties,  and  hence  no  other  authority- 
was  given  by  it,  but  to  «ertify  the  sum  of  money  on  payment  of  which 
the  judgment  should  be  released. 

Under  such  a  confession,  the  party  who  was  to  ascertain  the  sum  has  no 
authority  to  award  or  determine,  that  the  judgment  should  be  released  on 
payment  of,  &c.,  in  negro  property,  at  the  original  appraisement,  belong, 
ing  to  the  estate  of  H. 

APPEAL  from  St.  Manfs  county  court. 
7  v.2 


50  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

This  was  an  action  of  Debt,  commenced  on  the  25th  June 
1839,  by  the  appellants.  The  plaintiffs  declared  on  the  bond 
of  Mary  E.  Ford,  and  the  appellees  sealed  on  the  14th  June 
1836,  with  condition  the  that  said  M.  E.  F.  should  perform 
the  duties  of  administratrix  of  Ignatius  Ford,  deceased.  The 
defendants  pleaded  general  performance  by  M.  E.  F. 

To  which  the  plaintiffs  replied — 

1st.  That  before  the  making  and  execution  of  the  writing 
obligatory  aforesaid,  to  wit,  on,  &c.,  at,  &c.,  at  a  county 
court  begun,  &c.,  on  the  first  Monday  of  August  in  the  year 
1824,  the  State  of  Maryland,  for  the  use  of  Ignatius  Ford, 
then  and  there  in  his  lifetime  recovered  against  a  certain  Caleb 
M.  Jones,  in  an  action  of  debt  then  pending  between  the  said 
parties  in  the  said  county  court,  as  well  the  sum  of  three  thou- 
sand pounds,  being  the  penalty  of  a  certain  writing  obligatory, 
then  and  there  in  such  as  aforesaid,  a  certain  debt  and  the 
damages  and  costs  in  the  said  action,  then  and  there  assessed 
by  the  said  court,  to  be  released  upon  the  payment  of  what 
James  Forrest  shall  say  is  due,  and  costs ;  and  then  and  there 
at  the  same  court,  the  said  State,  at  the  like  instance  and  re- 
quest of  the  said  Ignatius  in  his  lifetime,  recovered  the  same 
judgment  with  the  same  release  thereof  against  Mordecai  C. 
Jones ;  and  then  and  there  at  the  same  court,  the  said  State, 
at  the  like  instance  and  request  of  the  said  Ignatius  in  his 
lifetime,  recovered  the  same  judgment  with  the  same  release 
thereof  against  William  Armstrong,  which  said  several  judg- 
ments, then  and  there  were  of  record  in  the  said  county  court, 
and  thereafter  being  in  said  court  remaining,  "the  record 
thereof"  was  then  and  there  by  accident  burnt  and  destroyed, 
and  which  said  judgments  yet  remain  in  full  force  ;  and  the 
said  State  in  fact  saith,  that  afterwards,  to  wit,  on,  &c.,  the 
said  James  Forrest,  to  whom  the  said  judgments  were  so  as 
aforesaid  referred,  did  then  and  there  make  and  file  his  award, 
and  then  and  there  did  award  and  determine  that  the  said  an- 
nexed judgments  be  released  on  payment  of  $1,016.52,  in 
negro  property,  at  the  original  appraisement,  belonging  to  the 
estate  of  Vitus  G.  Herbert,  deceased,  with  interest  thereon 


OF  MARYLAND.  51 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

from  the  19th  November  1824;  and  the  said  Stale,  in  fact 
saith,  that  before  the  making,  executing;  and  passing  of  the 
said  writing  obligatory  by  the  said  defendants,  the  said  Igna- 
tius Ford,  then  and  there,  to  wit,  on,  &c.,  departed  this  life 
in  said  county,  intestate,  leaving  a  widow,  the  said  Mary  £., 
and  four  children,  to  wit,  Harriet  E.,  who  afterwards  inter- 
married with  the  said  John  B.,  at  whose  instance  this  action  is 
brought,  Lewis,  Jinn  S.  and  Mark,  and  leaving  the  said 
judgment  and  award,  and  other  debts  due,  with  other  personal 
assets  in  said  county  to  a  large  amount,  to  wit,  twenty  negroes 
of  great  value,  to  wit,  the  value  of,  &c.,  and  a  large  sum  of 
money,  to  wit,  &c.,  due  to  the  said  Ignatius,  in  his  lifetime, 
to  be  administered  and  distributed  among  the  said  widow  and 
children.  And  the  said  State,  in  fact  saith,  that  the  said  ne- 
groes, debts  and  money  so  due  and  owing,  and  belonging  to 
the  said  Ignatius,  amounting  to  a  great  value,  to  wit,  the  value 
of,  &c.,  over  and  above,  and  after  making  all  just  allowances 
and  deductions  for  debts,  legacies  and  charges  upon  said  per- 
sonal estate,  is  bylaw  to  be  distributed  to  the  said  widow,  so 
that  the  said  widow  receive  one-third  part  thereof,  and  each 
of  the  said  children,  one-fourth  of  the  remaining  two-thirds 
thereof,  so  that  the  said  John  B.  and  Harriet  E.,  in  right  of 
said  Harriet  E.,  his  wife,  are  entitled  to  one-fourth  of  two 
thirds  of  the  said  negroes  and  money,  and  other  assets  of 
great  value,  that  is  to  say,  of  the  value  of  three  thousand  dol- 
lars, current  money.  And  the  said  State,  in  fact  saith,  that 
the  said  Mary  E.,  administratrix  as  aforesaid,  did  not  collect 
and  receive  the  said  negroes  and  money,  and  other  assets  of 
the  said  Ignatius,  and  of  which  the  said  Ignatius  died  pos- 
sessed and  entitled.  And  the  said  State,  in  fact  saith,  that  the 
said  Mary  E.,  as  administratrix  as  aforesaid,  has  not  account- 
ed for,  distributed,  or  paid  over  to  the  said  Harriet  E.,  while 
sole  and  unmarried,  nor  the  said  John  B.  and  Harriet  E.,  his 
wife,  since  their  intermarriage,  but  so  to  do,  has  wholly  refus- 
ed, &c. 

2nd.  That  a  certain  Ignatius  Ford,  late  of  Saint  Mary's 
county,  deceased,  departed  this  life,  to  wit,  at,  &c.,  intestate, 

HPRRfCK  & 


CASES  IN  THE  COURT  OF  APPEALS 


State,  use  of  Welch  and  wife,  vs.  Jones,  ut  al. — 1844. 

leaving  behind  him  a  widow,  the  said  Mary  E.,  an'J  four 
children,  to  wit,  &c.  And  the  said  State,  in  fact  saith,  that 
afterwards,  and  before  the  impetration  of  this  suit,  there  was 
in  the  county  aforesaid,  a  large  amount  of  personal  property 
of  the  said  Ignatius  then  and  there  remaining  in  the  said  coun- 
ty, to  be  administered  according  to  law ;  that  is  to  say, 
twenty  negroes  of  the  value  of  five  thousand  dollars,  and 
debts  due  the  said  Ignatius,  of  the  value  of  five  thousand 
dollars,  which  the  said  Mary  E.,  as  administratrix  as  aforesaid, 
might  and  could  have  collected,  received  and  administered 
according  to  law,  the  said  Mary  E.,  well  knowing  the  same. 
And  the  said  State,  in  fact  saith,  that  the  said  Mary  E.,  as 
administratrix  as  aforesaid,  did  not  at  any  time  return  to  the 
said  orphans  court,  an  inventory  of  the  property  and  assets  of 
the  said  Ignatius,  deceased,  nor  make  any  settlements  in  said 
court ;  but  afterwards,  to  wit,  on  the  day  and  year  aforesaid, 
returned  a  list  of  debts  amounting  to  $1,016,  with  interest 
from  the  20th  day  of  November  1824.  And  the  said  State, 
in  fact  saith,  that  the  property,  debts  and  other  assets  of  the 
said  Ignatius,  deceased,  amounted  in  the  whole  above,  all 
payments  and  allowances  for  the  debts,  charges,  &c.,  upon 
said  estate,  to  a  large  sum  of  money,  to  wit,  whereof  the  said 
widow  was  entitled  to  one-third,  and  the  said  John  B.  and 
Harriet  E.,  in  right  of  said  Harriet  E.,  one  of  the  children  of 
the  said  Ignatius,  deceased,  was  entitled  to,  &c.,  of  all  which 
the  said  Mary  E.,  as  administratrix,  then  and  there  had  no- 
tice. And  that  the  said  Mary  E.,  as  administratrix  aforesaid, 
did  not  at  any  time  distribute  and  pay  over  to  the  said  John 
B.  and  Harriet  E.,  his  wife,  the  said  distributive  share  and 
proportion  of  the  said  estate  and  property  ;  but  so  to  do  hath 
wholly  refused,  to  the  damage  of  the  said  John  B.  and  Har- 
riet E.,  his  wife. 

3rd.  That  heretofore,  to  wit,  on,  &c.,  and  before  the  impetra- 
tion of  the  writ  original  in  this  cause,  a  certain  Ignatius  Ford,  of 
the  said  county,  then  and  there  departed  this  life  intestate,  and 
leaving  the  said  Mary  E.,  his  widow  and  four  children,  to 
V?it,  &c.;  that  afterwards,  and  after  the  death  of  the  said  Ig- 


OF  MARYLAND.  53 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

natius,  the  orphans  court  of  St.  Mary^s  county,  then  and  there, 
to  wir,  on  the  day  and  year  aforesaid,  appointed  the  said  Ma- 
ry  E.,  &c.;   that  of  the  goods  and  chattels,  rights  and  credits 
of  the  said  Ignatius,  there  came  in  the  hands  of  the  said  Mary 
E.,  as  administratrix  as  aforesaid,  a  large  sum,  to  wit,  to  the 
value  of  ten  thousand  dollars,  over  and   above  all  payments 
and  discounts,  which  said  sum  was  and  is  distributable  and 
payable  to  the  said  Mary  E.,  widow,  to  the  amount  of  one- 
third  part,  and  to  each  of  the  said  four  children,  one-fourth  of 
two-thirds  thereof.     And  that  although  the  time  limited  by 
law  for  the  settlement  of  estates  by  executors  and  administra- 
tors has  long  since  expired,  and  in  which  the  said  Mary  E., 
as  administratrix,  was  bound  to  settle  and  distribute  the  said 
estate,  yet  the  said  State,  in  fact  saith,  that  the  said  Mary  E., 
as  administratrix,  hath  not  at  any  time  settled,  distributed  or 
paid  over  the  said  sum  of  money,  or  any  part  thereof,  to  the  said 
John  B.  and  Harriet  E.,  his  wife,  and  to  the  damage  of,  &c. 
The  defendants  rejoined,  that  there  was  no  such  judgments 
as  the  said  estate  has  thereon  alleged,  rendered  in  St.  Mary's 
county  court  against  the  said  defendants,  or  either  of  them, 
for  the  use  of  the  said  Ignatius,  or  against  the  said  William 
Armstrong.     And  that  the  said  James  Forrest  did  not  make 
and  file  his  award  in  manner  and  form  as  the  said  State  has 
above  alleged  ;  that  since  the  last  continuance,  the  said  Mary 
E.  Ford  hath  departed  this  life,  to  wit,  on,  &c.,  and  without 
having  received  or  recovered  any  of  the  said  judgments,  or 
any  other  sum  of  money  alleged  by  the  said  plaintiff,  to  be 
due  and  owing  to  the  estate  of  the  said  Ignatius,  and  that  no 
letters  of  administration  de  bonis  non  on   his  estate  had  been 
sued  out.     And  that  the  said  Ignatius  departed  this  life,  leav- 
ing five  children  and  heirs  at  law,  and  the  said  Mary  E.  Ford, 
his  widow,  and  that  he  left  no  negroes  or  other  assets  to  be 
administered  as  alleged  by  the  said  State,  beyond  the  sum  ne- 
cessary to  pay  the  debts  of  said  estate,  and  that  the  said  Mary 
E.  Ford,  in  her  lifetime,  did   return  a  true  and  perfect  inven- 
tory of  the  estate  of  the  said  Ignatius,  fully  administered,  the 
estate  of  the  said  Ignatius,  and  did  and  performed  all  the  acts 


54  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 


and  things  required  by  law  to  be  performed  by  her  as  such 
administratrix.  And  that  as  to  the  said  recited  judgments  and 
awards,  that  letters  of  administration  were  granted  to  the  said 
Mary  E.,  on  the  estate  of  the  said  Ignatius,  on  the  14th  day 
of  June  1836,  and  that  the  said  recited  judgments  first  came  to 
the  knowledge  of  the  said  Mary  E.,  on  the  day  of  Sep- 

tember 1836,  and  that  the  said  recited  judgments  were  barred 
by  the  statute  of  limitations,  on  the  13th  day  of  November 
1836,  and  so  the  said  defendant  avers,  that  in  failing  to  collect 
the  said  judgments  so  alleged  to  be  due  and  owing,  the  said 
Mary  E.  was  guilty  of  no  such  laches  as  to  entitle  the  said 
State  therefor  to  maintain  its  said  action.  And  that  after  the 
rendition  of  the  aforesaid  judgments,  it  was  so  proceeded  in,  in 
St.  Mary's  county  court,  sitting  as  a  court  of  equity,  in  a  case 
in  which  Mary  E.  Ford  by  M.  C.  Jones,  her  next  friend,  was 
complainant,  and  Ignatius  Ford  and  the  said  Caleb  M.,  were 
defendants;  that  on  the  ISth  day  of  March  ]826,  it  was  ad- 
judged, ordered  and  decreed  by  said  court,  that  the  said 
defendant  Caleb  M.,  should  pay  over  to  the  said  Mary  E.  for 
her  own  use,  the  amount  of  the  said  judgments  so  released, 
as  alleged  by  the  said  plaintiffs,  and  that  the  said  Ignatius 
should  credit  the  said  Caleb  M.  for  the  said  amount,  which 
said  sum  yet  remains  in  full  force  unrecovered  and  of  record 
in  the  said  court;  and  all  these  things  the  said  defendants  are 
ready  to  verify. 

The  plaintiff  sur-rejoined  : — 

1st.  That  there  is  no  such  record  in  St.  Mary's  county  court, 
sitting  as  a  court  of  equity,  as  by  the  defendants  in  manner  and 
form  in  their  rejoinder  is  alleged  ;  and  this  the  said  State  is 
ready  to  verify, 

2nd,  Says  that  the  said  Mary  E.  in  her  lifetime,  did  not 
well  and  truly  perform,  fulfil  and  keep  the  said  matters  and 
things  by  her  to  be  done,  performed  and  kept,  according  to 
the  condition  of  the  said  writing  obligatory,  as  she  above  al- 
leged, and  did  not  well  and  truly  administer  the  goods  and 
chattels,  rights  and  credits  of  the  said  Ignatius,  as  the  said 
defendants  have  above  alleged  ;  and  this  the  said  State  is 


OF  MARYLAND.  55 


Stale,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

ready  to  verify,  &c.  On  which  sur-rejoinclers  issues  were  joined. 
The  verdict  was  for  the  defendants. 

IST  EXCEPTION.  The  plaintiff,  to  support  the  issues  on  his 
part  joined,  gave  in  evidence  to  the  jury,  that  Harriet,  wife  of 
the  plaintiff,  was  one  of  the  legal  representatives  of  Ignatius 
Ford,  on  whose  administration  bond  the  present  defendant 
was  security,  and  then  read  in  evidence  to  the  jury  the  origi- 
nal inventory  and  list  of  debts  due  the  estate  of  Ignatius  Ford, 
returned  by  Mary  E.  Ford,  her  administratrix  in  her  lifetime. 
An  inventory  of  all  the  debts  owing  to  Ignatius  Ford,  late  of 
St.  Mary's  county,  deceased,  so  far  as  they  have  come  to 
the  knowledge  of  Mary  E.  Ford,  administratrix,  viz: 
C.  M.  Jones,  administrator  of  Vitus  G.  Herbert,  deceased,  on 
special  judgment  bearing  interest  from  20th  day  of  Novem- 
ber 1824,  to  be  paid  in  negro    property,  at  the    original 
appraisement,         ....        $1,016  52 

Sworn  to  and  filed  13th  September  1836. 
Having  first  proved  that  said  list  of  debts  was  returned  in 
the  handwriting  of  Caleb  M.  Jones,  the  present  defendant.  The 
defendants  having  first  proved  the  destruction  of  the  original 
papers  by  fire  in  the  destruction  of  the  court  house,  then  read 
in  evidence,  the  docket  entries  of  a  case  in  St.  Maryys  county 
court,  at  August  term  of  said  court,  in  the  year  1824,  in  the 
name  of  the  State,  at  the  instance  and  for  the  use  of  Ignatius 
Ford  against  Caleb  M.  Jones,  Mordecai  C.  Jones  and  William 
Armstrong. 

STATE  OF  MARYLAND,  at  the  instance  and  for  the  use  of 
Ignatius  Ford,  vs.  Caleb  M.  Jones.  St.  Mary's  county  court, 
August  term,  1824.  Debt,  Nar  and  Oyer.  Spl.  Impl.  and 
leave.  Perf.  repl.  Rejoinder  and  issue.  List  of  outstanding 
claims.  Jury  sworn  and  withdrawn.  Proceedings  stayed  by 
injunction.  Plead,  withdrawn. 

Judgment  13th  November  1824,  for  penalty  and  costs.  To 
be  released  on  payment  of  what  James  Forrest  shall  say  is  due, 
and  costs.  James  Forrest's  award  filed  20th  November  1824. 

Test,  Jo.  HARRIS,  Cl'k. 

Plaintiff's  costs,  $12.85. 


56  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

STATE  or  MARYLAND,  at  the  instance  and  for  the  use  of 
Ignatius  Ford,  vs.  MORDECAI  C.  JONES.  Same  as  preceding. 

STATE  OF  MARYLAND,  at  the  instance  and  for  the  use  of 
Ignatius  Ford,  vs.  WILLIAM  ARMSTRONG.  Same  as  preced- 
ing. 

By  which  it  appeared  that  a  judgment  was  confessed  in 
favor  of  the  plaintiff  for  penalty  and  costs,  to  be  released  on 
the  payment  of  what  James  Forrest  shall  say  is  due,  and  costs; 
and  then  gave  in  evidence  the  administration  bond  of  the  said 
Caleb  M.  Jones,  on  the  estate  of  Vitus  G.  Herbert,  dated  16th 
May  1820,  with  M.  C.  Jones  and  W.  Armstrong  as  sureties. 

And  the  said  Caleb  M.  Jones  was  the  administrator  of  Vitus 
G.  Herbert;  and  then  offered  to  read  to  the  jury,  for  the  pur- 
pose additionally  of  showing  that  the  judgment  returned  by 
Mary  E.  Ford,  administratrix  of  Ignatius  Ford  in  1836,  in 
the  handwriting  of  Caleb  M.  Jones,  was  the  judgment  referred 
to  James  Forrest  in  this  case,  and  the  award  of  James  Forrest, 
filed  in  the  case,  on  the  20th  November  1824.  An  inventory 
of  all  the  debts  owing  to  Ignatius  Ford,  as  above,  and  also 
the  above  short  copies  of  judgments  with  the  following  cer- 
tificates thereto  annexed,  viz : 

I  do  award  and  determine  that  the  annexed  judgments  be 
released  on  payment  of  $1,016.52,  in  negro  property,  at  the 
original  appraisement,  belonging  to  the  estate  of  Vitus  G.  Her- 
bert, deceased,  with  interest  thereon  from  this  19th  Novem- 
ber 1824.  JAS.  FORREST. 
True  copy,  Jo.  HARRIS,  Cl'k. 

The  plaintiff  then  gave  in  evidence  that  James  Forrest  died 
in  1826. 

The  defendant  then  prayed  the  court  to  instruct  the  jury, 
that  if  they  find  from  the  evidence,  that  the  debt  returned 
in  the  list  of  debts  by  Mary  E.  Ford,  as  administratrix  of 
Ignatius  Ford,  was  the  same  in  the  judgment  against  Caleb 
M.  Jones,  recited  in  this  bill  of  exception,  then  that  the  de- 
fendants are  not  responsible  in  this  action  for  the  same, 
because  the  award  made  by  James  Forrest,  was  not  within  the 
terms  of  the  reference,  and  the  sum  upon  which  the  judgment 


OF  MARYLAND.  57 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

was  to  be  released,  was  not  legally  arbitrated  or  liquidated  by 
him.  Which  opinion  the  court  (STEPHEN,  C.  J.,  and  KEY,  A. 
J.,)  gave.  The  plaintiff  excepted. 

2ND  EXCEPTION.  The  plaintiffs,  upon  the  evidence  incorpo- 
rated in  the  first  bill  of  exceptions,  prayed  the  court  to  instruct 
the  jury,  that  if  they  find  from  the  evidence  in  ihe  cause,  that 
Ibe  judgment  was  entered  for  the  debt,  to  be  released  on 
payment  of  what  James  Forrest  shall  say  is  due,  and  that 
James  Forrest  did  make  an  award.  And  the  award  so  made, 
was  adopted  by  Caleb  M.  Jones,  one  of  the  defendants,  that 
the  said  award  so  made  by  Forrest,  to  whom  the  judgment  was 
referred,  was  binding  upon  Caleb  M.  Jones,  and  that  the  de- 
fendants are  responsible  for  said  debt,  if  they  find  that  said 
debt  was  returned  by  Caleb  M.  Jones,  one  of  the  defendants 
in  this  cause,  in  his  handwriting,  and  recognised  by  Mary  E. 
Ford,  the  administratrix  of  Ignatius  Ford;  which  instruction 
the  court  refused  to  give.  The  plaintiff  excepted. 

SRD  EXCEPTION.  In  the  trial  of  this  cause  the  plaintiff,  in 
support  of  the  issues  on  his  part  joined,  in  addition  to  the  evi- 
dence given  to  the  jury  in  the  former  bills  of  exceptions,  which 
is  here  incorporated  and  made  a  part  of  this,  further  offered  to 
read  in  evidence  from  the  records  of  the  orphans  court  of  St. 
Mary^s  county,  the  final  account  of  Caleb  M.  Jones,  (who  is 
one  of  those  defendants,)  as  administrator  of  Vitus  G.  Her- 
bert. 

The  fifth  and  final  account  of  Dr.  Caleb  M.  Jones,  adra'r  of 
Vitus  G.  Herbert,  late  of  St.  Mary's  county,  deceased. 
This  accountant  chargeth  himself  with  the  balance  due  at 
his  last  settlement,  the  10th  day  of  Novem- 
1824,  amounting  to  $372  71£ 

Also  with  cash  received  from  the  following  persons  : 

William  Herbert,  Sen.    -  $961  00 

John  Clarke,      -  -      1  75 

Thomas  Clarke,  Sen.      -  -      1  01£ 

Nelson  White,  -  1  50 

Samuel  Gibson,  -  4  00 

S         v.2 


58  •    CASES  IN  THE  COURT  OF  APPEALS 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

William  Dunbar,  -  -  -      2  00 

Lewis  Smith,     -  -          50 

Caleb  M.  Jones,  -    24 


$1,369  29 

And  this  accountant  prays  to  be  allowed  for  the  following  pay- 
ments and  disbursements,  to  wit: 

Thomas  Clarke,  ... 

Peter  U.  Thompson  &  Co.,  use  W.  Floyd,  judg- 
ment,        ..... 

Dr.  Caleb  M.  Jones,  for  money  due  from   Igna- 
tius Ford  for  hire  of  negroes, 

Same  for  property  purchased  by  Mary  Herbert  at 
sale,  one  dark  bay  mare,     - 

Ten  per  cent,  commission  allowed  on  $996. 57|-, 

Register  of  Wills'  fees  to  be  paid  James  Forrest, 

$352  77 
Balance  due  and  distributable,  -         1,016  52 


$1,369  29 

This  account  on  the  19th  November  1824,  was  sworn  to  by 
Dr.  Caleb  M.  Jones,  administrator  of  Vitus  G.  Herbert,  as  just 
and  true,  and  that  he  hath  bona  fide  paid  or  secured  to  be  paid, 
the  particular  sums  for  which  he  claims  an  allowance,  which 
thereupon,  after  due  examination,  is  passed  by  the  register  of 
wills  for  St.  Mary's  county. 

And  also  offered  to  prove  by  a  legal  and  competent  witness, 
that  said  Mary  E.  Ford  lived  in  the  family  of  said  Caleb  M. 
Jones,  from  the  year  1822,  until  the  time  of  her  death ;  and 
also  that  said  Caleb  M.  Jones  paid  fees  against  said  Mary  E. 
Ford  after  her  death,  which  fees  were  due  before  her  death, 
for  the  purpose  of  showing  the  indebtedness  of  said  Caleb  M. 
Jones,  as  administrator  of  Vitus  G.  Herbert,  and  that  the  bal- 
ance in  his  hands  of  said  estate,  due  and  distributable,  corres- 
pond? «n  amount  with  the  award  of  James  Forrest  aforesaid, 
and  the  list  of  debts  due  to  the  estate  of  said  Ignatius,  as  re- 
turned by  his  administrator  aforesaid,  and  also  for  the  purpose 


OF  MARYLAND.  59 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

of  proving  that  said  Caleb  M.  Jones  and  said  Mary  E.  Ford, 
as  administratrix  as  aforesaid,  acquiesced  in  the  said  award, 
and  said  C.  M.  /.,  consented  to  pay  the  said  sum  of  money 
to  said  M.  E.  F.,  as  administratrix  as  aforesaid  ;  and  prayed 
the  court  to  instruct  the  jury,  that  if  from  the  evidence  they 
find  that  said  Caleb  M.  Jones  and  Mary  E.  Ford  did  acquiesce 
in  said  awaid,  and  said  Caleb  M.  did  consent  and  agree  to 
pay  the  said  sum  of  money  to  said  Mary  E  ,  administratrix  as 
aforesaid,  that  then  the  said  plaintiff  is  entitled  to  recover  his 
proportion  of  said  sum  of  money;  which  opinion  and  instruc- 
tion the  court  refused  to  give,  but  were  of  opinion,  and  so 
instructed  the  jury,  that  there  was  no  legally  sufficient  evidence 
offered  to  prove  that  said  Caleb  M.  Jones  and  Mary  E.,  did 
acquiesce  in  said  award,  or  that  said  Caleb  M.  Jones  did  con- 
sent and  agree  to  pay  the  said  sum  of  money  to  the  said  Mary 
E.  Ford.  The  plaintiff  excepted. 

4rH  EXCEPTION.  The  plaintiff  prayed  the  court  to  instruct 
the  jury  upon  the  whole  evidence,  that  the  award  of  James 
Forrest  so  returned,  was  valid  and  binding,  as  it  does  not  ap- 
pear from  the  papers  in  the  case,  that  he  exceeded  his  authority 
in  designating  the  manner  in  which  the  sum  ascertained  should 
be  discharged  by  the  defendant ;  which  instruction  the  court 
refused  to  give.  The  plaintiff  excepted. 

The  plaintiff  below  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  CHAMBERS  and 
SPENCE,  J. 

By  GRAIN  for  the  appellants  and 

By  T.  S.  ALEXANDER  for  the  appellees. 

CHAMBERS,  J.,  delivered  the  opinion  of  this  court. 

The  first  exception  involves  the  validity  of  the  certificate, 
or  as  it  is  termed  in  the  record,  the  award  signed  and  returned 
by  James  Forrest. 

This  cannot  be  considered  as  a  reference  under  the  provi- 
sions of  the  act  of  1778,  ch.  21.  The  various  provisions  of 
that  act,  all  contemplate  a  case  still  pending  in  court  and 


60  CASES  IN  THE  COURT  OF  APPEALS 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al. — 1844. 

awaiting  the  return  of  the  award  before  a  judgment  is  to  be 
rendered  ;  whereas  in  this  case,  a  judgment  has  been  entered, 
which  according  to  the  case  of  Turner  vs.  Plowden,  5  G.  fy  J. 
52,  is  a  final  judgment,  without  the  further  action  of  the  court. 
It  would  seem  not  to  be  possible  in  such  a  case  to  give  judg- 
ment on  the  award,  according  to  the  direction  of  the  act  of 
1778,  ch.  21,  sec.  8,  without  which  the  objects  of  that  act 
cannot  be  attained.  See  Shriver  vs.  State,  use  of  Devilbiss,  9 
G.fyJ.  1.  The  words  "payment"  and  "due"  would  seem  to 
import,  that  a  sum  of  money  was  alone  in  view  of  the  parties, 
and  we  must  conclude  that  no  other  authority  was  given  to  J. 
Forrest  but  to  certify  the  sum  of  money,  on  payment  whereof 
the  penalty  and  costs  should  be  released ;  and  then  the  ques- 
tion arises  whether  he  has  pursued  the  authority  thus  given? 
We  think  not.  It  is  most  obvious  that  the  payment  of  any 
specific  amount  of  money  in  specie  would  not  be  an  execution 
of  his  direction.  Payment  is  not  only  to  be  made  in  negroes, 
but  in  negroes  belonging  to  a  particular  estate,  and  at  a  value 
estimated  by  a  designated  standard,  and  the  plaintiff  was  not 
entitled  to  demand,  nor  could  the  defendant  claim  to  discharge 
the  debt  in  any  other  mode  than  the  one  mentioned  in  the  cer- 
tificate, and  no  execution  could  therefore  issue.  If  instead  of 
the  judgment,  a  reference  had  been  made  in  terms  broad  enough 
to  authorise  such  an  award,  and  a  judgment  had  been  entered 
thereon,  all  difficulty  in  that  respect  would  have  been  removed. 
9  G.  #  J.  1 ;  10  G.  #  J.  192.  The  object  intended  and  di- 
rected by  the  certificate  cannot  be  effected  by  striking  from  it 
so  much  as  relates  to  the  negroes,  and  allowing  it  to  remain 
as  if  it  had  directed  the  payment  of  the  specific  sum  of 
$1,016. /flV  Assuming  the  negroes  to  have  been  appraised 
at  a  fair  value  in  1820,  when  the  administration  bond  on  the 
estate  of  S.  G.  Herbert  appears  to  have  been  given,  and  when 
we  must  suppose  the  appraisement  and  inventory  were  made, 
it  was  nearly,  if  not  quite,  impossible,  the  negroes  could  have 
remained  of  precisely  the  same  value,  until  the  letters  of  ad- 
ministration to  Mary  E.  Ford  in  1836,  at  the  expiration  of 
sixteen  years,  or  at  any  later  period;  and  if  there  was  any 


OF  MARYLAND.  61 


State,  use  of  Welch  and  wife,  vs.  Jones,  et  al — 1844. 

difference  in  such  value  at  the  time  when  the  payment  of  the 
$l,Ol6.TYuj*>*  money  was  enforced,  either  more  or  less  would 
be  paid  than  the  certificate  required,  as  the  appreciation  or  de- 
preciation of  the  negroes  should  determine.  It  was  therefore 
necessary  to  the  essential  merits  of  the  case,  that  the  payment 
should  not  he  required  in  money.  Whether  this  be  regarded  as 
an  award,  or  as  in  the  nature  an  of  award,  we  are  of  opinion, 
that  upon  principle  or  analogy,  the  certificate  could  not  entitle 
the  plaintiff  to  claim  in  money,  the  amount  therein  stated. 
We  therefore  concur  with  the  court  in  the  opinion  given  in  the 
first  exception,  and  also  in  the  opinion  given  in  the  fourth  ex- 
ception, which  raises  the  same  question. 

In  the  second  exception,  the  plaintiff  asked  the  court  to 
instruct  the  jury,  that  the  defendants  were  responsible  for  the 
nominal  amount  of  the  said  certificate,  if  they  should  find 
that  it  was  mentioned  in  the  list  of  debts  due  to  the  estate  of 
Ignafius  Ford,  returned  by  Mary  E.  Ford,  the  administratrix, 
and  which  return  was  in  the  handwriting  of  Caleb  M.  Jones. 
We  are  of  opinion  that  the  court  were  right  in  refusing  the  in- 
struction. The  claim  is  stated  in  the  list  of  debts  as  payable 
in  negro  property  at  the  original  appraisement.  The  return  is 
a  report  by  the  administratrix,  M.  E.  Ford,  of  the  fact  that 
such  a  judgment  existed,  but  we  have  before  said  it  did  not 
enable  her  to  collect  the  amount  of  money  mentioned  in  the 
certificate,  and  of  course  she  was  not  responsible  for  that 
amount,  as  for  so  much  money  lost  by  her  neglect. 

The  additional  facts  set  forth  in  the  third  exception,  do  not 
in  any  degree  relieve  the  case  of  the  difficulties  and  objections 
which  oppose  the  right  of  the  plaintiff  to  recover  upon  this 
certificate  the  sum  of  money  which  he  claimed  in  this  action, 
nor  indeed  do  we  perceive  how  the  administration  account 
brought  into  the  case,  can  be  made  to  bear  upon  the  issue. 

Whether  the  balance  stated  to  be  due  on  that  administration 
account,  was  due  to  Ignatius  Ford,  or  was  recoverable  by  his 
administratrix,  or  any  portion  of  it,  or  to  whom  due,  the  record 
does  not  disclose.  Finding  no  error  in  any  of  the  opinions  to 
which  exception  has  been  taken,  we  must  affirm  the  judgment 
with  costs  to  appellee.  JUDGMENT  AFFIRMED. 


62  CASES  IN  THE  COURT  OK  APPEALS 


State,  use  of  Creecy,  vs.  Lawson  ct  al. — 1844. 


STATE  OF  MARYLAND,  FOR  THE  USE  OF  JAMES  R.  CREECY, 

USE  OF   WlLLTAM  A.   MoALE,  VS.  JOHN   B.   LAWSON,  JOHN 

MATTHEWS  AND  JOHN  B.  WILLS. — December  1844. 

The  courts  of  Maryland  have,  for  a  long  period,  sanctioned  the  abbreviated 
form  of  a  return,  cepi,  by  the  sheriff,  to  the  writ  of  capias  ad  satisfacien- 
dum. 

Sucli  a  return  is  in  legal  effect,  a  declaration  by  the  sheriff  on  oath,  that  by 
virtue  of  the  writ,  he  had  taken  the  body  of  the  defendant,  and  him  had 
ready  to  produce  before  the  court,  at  the  time  and  place,  as  commanded  by 
such  writ. 

The  sheriff's  return  is  prima  facie  evidence  of  the  truth  of  the  facts  which 
it  discloses. 

In  this  State,  anterior  to  the  acts  of  1811  ch.  161,  sec.  2,  if  the  sheriff  made 
an  arrest  under  a  capias  on  final  process,  and  suffered  the  party  arrested  to 
escape,  he  could  not  again  arrest  the  same  party,  on  the  same  process, 
without  rendering  himself  obnoxious  to  an  action  of  trespass  for  false  im- 
prisonment. 

This  disability  was  removed  by  that  act,  and  the  power  conferred  on  the 
sheriff  to  make  a  second  arrest,  of  the  same  party,  by  virtue  of  the  same 
process.  But  it  did  not  protect  the  sheriff  against  the  demand  of  the  plain, 
tiff  in  the  process  for  an  escape. 

The  act  of  1828,  ch.  50,  sec.  2,  declared  that  if  the  sheriff  produced  the  body 
of  the  defendant  at  the  return  day  of  the  writ,  he  should  not  be  liable  for 
any  intermediate  escape.  This  act  is  not  confined  to  arrests  on  mesne  pro- 
cess, but  applies  to  final  process,  attachment  as  well  as  capias. 

Before  the  act  of  1828,  the  sheriff  on  mesne  process  was  authorised  to  arrest 
the  defendant  a  second  time  ;  and  the  reason  and  policy  of  the  law  was  by 
it  extended  to  arrests  on  final  process. 

Where  a  sheriff  arrests  the  defendant  on  final  process,  and  has  him  ready  to 
be  delivered  up  at  the  return  day  of  the  writ,  on  the  demand  of  the  plain- 
tiff, this  in  law  is  a  performance  of  his  duty. 

In  an  action  on  a  sheriff's  bond,  for  an  alleged  permissive  escape  by  the 
sheriff  of  a  party  arrested  on  a  ca.  sa.,  which  that  officer  had  returned 
cepi,  the  plaintiff  may  show  that  such  return  is  untrue  in  point  of  fact,  and 
that  the  sheriff  had  not  the  body  of  the  defendant  in  court,  at  the  return  day 
of  the  writ,  ready  to  be  delivered  up  on  the  demand  of  the  plaintiff. 

After  an  arrest  under  a  ca,  sa.,  and  a  permissive  escape  before  the  return  day 
has  been  proved,  the  burthen  of  showing,  that  the  sheriff  had  the  body  of  the 
defendant  in  court,  according  to  the  exigencies  of  the  writ  and  his  return 
of  cepi  thereto,  is  upon  the  sheriff. 

In  an  action  on  the  case  at  common  law  against  the  sheriff  for  an  escape,  he 
may  offer  evidence  in  mitigation  of  damages.  The  amount  recovered  against 
the  party  arrested,  is  not  conclusive  on  that  question. 


OF  MARYLAND.  63 


State,  use  of  Creecy,  vs.  Lawson  et  al. — 1844. 


The  statutes  of  13  Edw.  1,  ch.  11,  and  1  Rich.  2,  ch.  12,  first  gavo  the  action 
of  debt  against  a  gaoler  or  sheriff  for  an  escape. 

Where  the  statutable  remedy  is  pursued,  the  sheriff  is  put  by  the  statute  in  the 
same  situation  in  which  the  original  debtor  stood,  and  the  jury  cannot  give 
a  less  sum  than  the  creditor  would  have  recovered  against  the  defendant  in 
the  original  suit. 

The  action  on  the  sheriff's  bond  to  recover  damages  for  an  escape,  is  neither 
the  common  law  action  on  the  case,  nor  the  remedy  granted  by  the  statutes 
of  Edward  and  Richard. 

In  an  action  on  a  sheriff's  bond,  conditioned  for  the  faithful  discharge  of  his 
duties,  the  defendant  is  liable  to  no  more  damages  for  an  alleged  escape 
under  final  process,  than  the  plaintiff  has  actually  sustained,  to  be  ascer- 
tained by  the  verdict  of  a  jury,  and  hence  the  sheriff  and  his  sureties  may 
show  under  such  a  breach,  in  mitigation  of  damages,  the  insolvency  of  the 
original  defendant  from  the  time  of  the  issue  of  theca.  sa.  until  its  return. 

There  are  many  instances  in  which,  on  the  assignment  or  suggestion  of  breach- 
es under  the  Stat.  8  and  9  Will.  3,  the  measure  of  damages  is  fixed  and 
certain,  but  they  arise  from  the  peculiar  circumstances  of  each  case,  and 
not  from  any  general  rule, 

On  a  judgment  by  default  in  a  suit  on  a  sheriff's  bond  for  an  escape,  the  court 
would  not  assume  the  power  of  assessing  damages  and  giving  final  judg- 
ment. 

The  act  of  1768,  ch.  10,  sec.  1,  enables  any  plaintiff  in  an  execution  to  call 
upon  the  sheriff  to  produce  the  body  of  the  defendant  before  the  court,  and 
on  his  default,  on  motion,  to  cause  judgment  to  be  entered  up  for  the  full 
amount  of  his  claim,  principal,  interest  and  costs. 

Where  such  a  course  is  adopted,  in  an  action  on  the  sheriff's  bond,  assigning 
as  a  breach  the  non-payment  of  such  a  judgment,  that  officer  and  his  sure- 
ties would  be  liable  for  the  full  amount  of  the  judgment- 

The  act  of  1768,  ch.  10,  is  not  merged  in  the  act  of  1794,  ch.  54,  but  is  now 
in  full  force  and  frequently  practised  under. 

The  failure  of  a  plaintiff  in  a  ca.  sa.,  to  call  on  the  sheriff  at  the  return  of 
the  writ  to  produce  the  body  of  the  defendant  in  court,  does  not  furnish  any 
ground  of  presumption,  in  an  action  against  the  sheriff  for  a  default,  that 
the  defendant  was  discharged  out  of  the  custody  of  the  sheriff  by  the  con- 
sent of  the  plaintiff. 

The  failure  of  a  plaintiff  to  pursue  one  legal  remedy  against  a  sheriff  in  de- 
fault, ciinnot  be  construed  into  the  abandonment  of  another  legal  remedy 
against  that  officer,  for  the  same  default. 

APPEAL  from  Charles  County  Court. 

This  was  an  action  of  Debt,  commenced  on  the  13th  March 
1828,  by  the  appellee  on  the  bond  of  the  appellants,  dated 
29th  December  1835,  with  condition  that  /.  B.  L.,  as  sheriff 
of  Charles  county,  should  discharge  the  duties  of  that  office. 


64  CASES  IN  THE  COURT  OK  APPEALS 


State,  use  of  Creecy,  vs.  Lawson  et  al. — 1844. 


The  defendants  pleaded  general  performance,  and  the  plain- 
tiff assigned  as  a  breach  :  1st.  The  recovery  of  a  judgment 
by  James  R.  Creecy  against  John  Tucker,  at  August  term  1835 
of  Charles  county  court;  the  issue  of  a  ca.  sa.  thereon  on  the 
26th  September  1836,  returnable  on  the  3rd  Monday  of  March 
1837:  the  arrest  and  custody  of  J.  T.  under  said  writ,  and 
his  escape  therefrom;  and  2nd.  A  default  in  not  returning  the 
writ  according  to  its  command,  though  called,  &c. 

The  defendants  rejoined,  that  the  said  John  B.  Lawson  has 
well  and  truly  fulfilled  and  performed  the  duties  of  sheriff  of 
the  said  county  of  Charles,  and  hath  well  and  truly  executed 
and  returned  all  writs,  process  and  warrants  to  him  directed 
and  delivered,  which,  according  to  the  form  and  effect  of  the 
said  condition  of  the  writing  obligatory  aforesaid,  he  ought  to 
have  done,  which  they  pray  may  be  enquired  of  the  country, 
&c. 

IST  EXCEPTION.  In  the  trial  of  this  cause,  the  plaintiff',  to 
support  the  issues  on  his  part  joined,  read  in  evidence  to  the 
jury  the  record  of  a  judgment  obtained  in  Charles  county 
court,  as  stated  in  the  replication,  and  also  the  writ  of  ca.  sa., 
issued  and  returnable  as  before  stated.  On  the  back  of  which 
said  writ  of  capias  ad  satisfaciendum  is  thus  written,  to  wit : 
"Cepi,  John  B.  Lawson,  sheriff." 

And  also  gave  in  evidence  to  the  jury,  by  legal  and  compe- 
tent witnesses,  that  after  the  day  of  the  issuing  of  the  said 
ca.  sa.,  to  wit,  in  October  1836,  the  said  John  Tucker,  in  the 
judgment  and  ca.  sa.  mentioned,  was  seen  by  the  witness  in 
and  residing  in  Charles  county  aforesaid;  that  after  the  issuing 
of  the  said  writ  of  ca.  sa.,  to  wit,  in  February  1837,  the  said 
Tucker  was  seen  at  and  was  residing  in  Vicksburg,  in  the  State 
of  Mississippi.  The  plaintiff  also  gave  in  evidence  that  the 
said  Tucker  was  seen  and  conversed  with  by  plaintiff's  attor- 
ney in  December  1836,  at  Annapolis;  and  further  gave  in 
evidence  to  the  jury,  by  legal  witnesses  residing  in  Charles 
county  aforesaid,  that  they  never  saw  the  said  Tucker  in  Charles 
county  since  January  1837. 


OF  MARYLAND.  65 

State,  use  of  Creecy  vs.  Lawson  et  al. — 1844. 


The  defendant  then  proved,  that  the  March  term  of  Charles 
county  court,  commencing  on  the  third  Monday  of  March  1837, 
was  continued  over  until  the  first  Monday  of  June  1837,  and 
that  ample  time,  according  to  the  usual  course  of  communica- 
tion and  conveyance,  existed  for  said  John  Tucker  to  come 
from  Vicksburg  to  Port  Tobacco,  from  the  time  he  was  last  seen 
in  Vicksburg,  so  as  to  be  before  Charles  county  court  at  March 
term  1837;  and  thereupon,  the  plaintiff  prayed  the  court  to 
instruct  the  jury,  that  if  they  find  from  the  evidence  that  John 
Tucker  aforesaid,  was  in  Charles  county  after  the  issuing  of 
the  said  ca.  sa  ,  and  before  its  return,  to  wit,  in  October  1836, 
and  that  the  said  writ  was  served  upon  him,  and  that  after- 
wards, to  wit,  in  February  1837,  he  was  seen  and  residing  in 
Vicksburg,  in  Mississippi,  then,  that  the  plaintiff  is  entitled  to 
recover,  unless  the  defendants  prove  to  the  satisfaction  of  the 
jury  that  the  defendant,  Lawson,  the  sheriff,  had  the  body  of 
the  said  Tucker  before  Charles  county  court,  at  March  term 
1837,  to  render  him  in  execution  for  the  debt  before  men- 
tioned, according  to  the  exigency  of  the  said  writ  of  ca.  sa.; 
which  instruction  the  court  (C.  DORSEY,  A.  J.)  gave  to  the 
jury.  The  defendant  excepted. 

2ND  EXCEPTION.  After  the  evidence  in  the  first  bill  of  ex- 
ceptions was  given,  which  is  also  here  incorporated,  the  de- 
fendants offered  to  prove  to  the  jury  by  legal  and  competent 
witnesses,  that  at  the  time  of  the  issuing  the  ca.  sa.  up  to  the 
time  of  the  return  thereof,  the  said  Tucker  was  wholly  insol- 
vent and  unable  to  pay  the  judgment  and  execution  aforesaid, 
or  any  part  thereof,  for  the  purpose  of  mitigating  the  amount 
of  damages  which  might  be  found  by  the  jury  in  this  action 
in  favor  of  the  plaintiff;  but  the  court,  upon  the  plaintiff's 
objection  to  the  introduction  of  the  said  proof  under  the  plead- 
ings in  the  case,  refused  to  permit  the  said  proof,  for  the  pur- 
pose aforesaid,  to  be  given  to  the  jury,  and  were  of  the  opinion 
and  so  instructed  the  jury,  that  the  sura  recovered  in  the  judg- 
ment above  mentioned,  with  interest  thereon  up  to  the  present 
time,  with  all  costs  awarded  to  the  plaintiff  in  the  said  judg- 
ment, was  the  true  measure  of  damages  which  the-plaintiff  was 
9  v.2 


66  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Creecy  vs.  Lawson  et  al. — 1844. 

entitled  to  recover  in  this  action,  if  they,  from  the  evidence 
given  in  the  cause,  should  find  for  the  plaintiff;  to  which  re- 
fusal and  opinion  and  instruction,  the  defendant  excepted. 

SRD  EXCEPTION.  After  the  evidence  already  given  in  the 
former  bills  of  exceptions,  which  is  here  incorporated,  the 
defendants,  by  their  counsel,  prayed  the  court  to  instruct  the 
jury,  that  it  was  incumbent  upon  the  plaintiff  to  satisfy  them 
by  legal  evidence,  that  the  ca.  sa.  aforesaid  had  come  to  the 
hands  of  the  said  Lawson,  as  sheriff,  and  had  been  served  upon 
the  said  Tucker  before  the  said  Tucker  was  seen  in  Vicksburg, 
and  that  the  said  sheriff  had  not  the  body  of  the  said  Tucker 
in  his  custody,  so  that  he  could  have  brought  him  at  any  time 
during  the  continuance  of  the  March  term  18S7,  before  the 
court  to  be  committed  in  execution,  if  called  upon  so  to  do. 

The  defendant  also  prayed  the  court  to  instruct  the  jury, 
that  if  they  find  from  the  evidence  in  the  cause,  that  said 
Tucker  was  going  at  large  and  out  of  the  custody  of  the  said 
sheriff  in  December  1836,  and  the  said  sheriff  was  not  called 
upon  to  return  said  ca.  sa.)  or  have  the  said  Tucker  before  the 
court,  that  then  they  may  presume  that  the  said  Tucker  was, 
by  the  consent  of  said  plaintiff,  discharged  out  of  the  custody 
of  the  said  sheriff,  and  that  the  plaintiff,  in  that  event,  is  not 
entitled  to  recover;  which  instruction  the  court  refused  to  give. 
The  defendant  excepted. 

4xH  EXCEPTION.  After  the  evidence  in  the  previous  bills  of 
exceptions  was  given,  which  is  here  also  incorporated  and 
made  a  part  of  this  exception,  the  defendant  read  in  evidence 
to  the  jury  the  record  of  proceedings  of  Charles  county  court, 
at  March  term  1837,  in  the  case  aforementioned  of  James  R. 
Creecy  against  John  Tucker,  upon  the  execution  docket  thereof, 
also  the  record  of  proceedings  of  said  court  at  August  term 
1837,  in  the  case  aforementioned  : 

James  R.  Creecy,  use  of  William  A.  Moale,  vs.  John  Tucker. 
Charles  county  court,  March  term  1837.  2  ca.  sa.  "Cepi." 

James  R.  Creecy,  use  of  William  A.  Moale,  vs.  John  Tucker. 
Charles  county  court,  August  term  1837.  August  22.  On 
motion  of  plaintiff's  attorney,  rule  on  John  B.  Lawson,  Esq., 


OF  MARYLAND.  67 


State,  use  of  Creecy  vs.  Lawson  et  al. — 1844. 


late  sheriff  of  Charles  county,  to  produce  the  body  of  the  de- 
fendant; motion  overruled.  Test, 

JOHN  BARNES,  Clk. 

And  prayed  the  court  to  instruct  the  jury,  if  they  find  from 
the  evidence  in  the  cause  that  the  said  Lawson,  the  sheriff, 
was  not  called  upon  to  return  the  said  ca.  sa.  at  March  term 
1837,  and  he  was  not  called  upon  to  have  the  body  of  the 
said  Tucker  before  the  said  court  at  the  said  term,  but  that  the 
said  plaintiff  forbore  or  neglected  to  call  upon  the  said  sheriff 
to  return  the  said  writ  and  have  the  body  of  the  said  Tucker 
before  the  said  court,  and  afterwards,  at  August  term  1837  of 
said  court,  did  move  the  said  court  to  compel  the  said  sheriff 
to  have  the  body  of  said  Tucker  before  the  said  court,  to  be 
committed  in  execution,  and  that  said  court  then  and  there 
refused  to  grant  the  said  motion  and  order,  that  then  they  find 
for  the  defendants,  unless  they  find  that  the  ca.  sa.  aforesaid 
came  to  the  hands  of  the  said  sheriff,  and  was  served  upon 
the  said  Tucker  before  he  the  said  Tucker  was  seen  in  and 
residing  at  Vicksburg,  and  that  the  sheriff  had  not  the  body  of 
the  said  Tucker  in  his  custody  at  any  time  during  the  contin- 
uance of  March  term  1837  of  said  court,  so  as  to  bring  him 
before  the  said  court  at  that  term,  if  failed  upon  so  to  do; 
which  instruction  the  court  refused  to  give,  and  to  which  refu- 
sal the  defendants  excepted. 

STH  EXCEPTION.  After  the  aforegoing  evidence  was  given, 
mentioned  in  previous  bills  of  exceptions,  which  is  also  here 
incorporated,  the  defendants  by  their  counsel  prayed  the  court 
to  instruct  the  jury,  that  if  they  find  from  the  evidence  in  the 
cause  that  the  plaintiff  refused  or  neglected  to  call  upon  the 
sheriff  aforesaid  to  return  the  said  writ  of  ca.  sa.,  and  to  have 
the  body  of  the  said  Tucker  before  the  said  court,  to  be  com- 
mitted in  execution,  during  the  continuance  of  the  March  term 
1837  of  the  said  court,  that  then  the  plaintiff  is  not  entitled 
to  recover;  which  opinion  and  instruction  the  court  (C.  DOR- 
SEY,  A.  J.)  refused  to  give;  to  which  refusal  the  defendant 
excepted. 


68  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Creecy  vs.  Lawson  et  al. — 1844. 

The  verdict  and  judgment  being  for  tiie  plaintiffs,  the  de- 
fendants prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  CHAMBERS,  and 
SPENCE,  J, 

By  GRAIN  and  McMAHON  for  the  appellants,  and 
By  GLENN  and  ALEXANDER,  for  the  appellees. 

SPENCE,  J.,  delivered  the  opinion  of  this  court. 

This  was  an  action  of  debt  on  a  sheriff's  bond,  brought  to 
recover  damages  for  an  escape  of  a  party,  arrested  by  the 
sheriff  on  a  capias  ad  satisfaciendum. 

The  capias  was  returned  to  the  March  term  of  Charles 
county  court,  by  Lawson,  the  sheriff,  endorsed,  "Cfepi."  The 
sanction  of  the  courts  of  Maryland,  so  long,  of  this  abbrevi- 
ated form  of  return,  we  deem  conclusive  of  its  correctness. 
Let  us  next  consider  the  purport  of  such  a  return. 

We  understand  this  return  to  be  a  declaration  by  the  sheriff 
on  oath,  that,  "by  virtue  of  this  writ,  he  had  taken  the  within 
named  Tucker,  whose  body  he  had  ready  before  Charles  county 
court  within  named,  at  the  day  and  place  within  contained,  as 
he  was  within  commanded." 

In  the  language  of  Watson  on  Sheriff,  68,  "returns  are 
nothing  else  but  the  sheriff's  answers,  touching  that  which 
they  are  commanded  to  do  by  the  king's  writ,  and  are  but  to 
ascertain  the  court  of  the  truth  of  the  matter." 

"Credence  is  given  to  the  return  of  the  sheriff,  so  much  so, 
that  there  can  be  no  averment  against  the  sheriff's  return 
in  the  same  action."  "Even  in  another  action,  the  sheriff's 
return  is  prima  facie  evidence  of  the  facts  contained  in  it." 
Watson  on  Sheriff,  52,  53. 

Thus  we  see  that  the  sheriff's  return  is  prima  facie  evidence 
of  the  truth  of  the  facts  which  it  discloses.  But  it  was  insisted 
in  the  argument,  that  the  strict  requirements  of  the  law,  in 
relation  to  escapes,  voluntary  or  otherwise,  on  the  part  of  the 
sheriff  on  final  process,  was  not  modified  by  the  2nd  section 
of  the  act  of  1811,  ch.  161,  and  the  act  of  1828,  ch.  50. 


OF  MARYLAND.  69 


State,  use  of  Crcecy,  vs.  Lawson  et  al. — 1844. 


These  acts,  it  is  insisted,  have  application  to  attachments  and 
capias  on  mesne  process  only.  From  this  construction  of 
these  statutes  we  must  dissent. 

In  Maryland,  anterior  to  the  act  of  1811,  ch.  161,  sec.  2, 
if  the  sheriff  made  an  arrest  under  a  capias  on  final  process, 
and  suffered  the  party  arrested  to  escape,  he  could  not  again 
arrest  the  same  party  on  the  same  process,  without  rendering 
himself  obnoxious  to  an  action  of  trespass  for  false  imprison- 
ment. This  disability  the  second  section  of  the  act  of  1811, 
ch.  161,  removed,  by  conferring  the  power  on  the  sheriff  to 
make  a  second  arrest  of  the  same  party,  by  virtue  of  the  same 
process.  But  this  statute,  while  it  protected  the  sheriff  against 
the  party  so  arrested  a  second  time,  did  not  protect  him  against 
the  demands  of  the  plaintiff  in  the  process,  for  an  escape. 
Thus  the  law  stood  until  the  act  of  1828,  ch.  50,  which  act, 
in  all  probability  was  passed  in  consequence  of  the  case  of 
Koones  vs.  Maddox,  2  Harr-.  fy  Gill,  106,  which  case  was  de- 
cided by  this  court  at  June  term  1827,  and  the  act  of  1828, 
ch.  50,  was  passed  at  the  next  succeeding  session  of  the  Le- 
gislature. The  statute  of  1828,  ch.  50,  re-enacts  the  second 
section  of  the  act  of  1811,  ch.  161,  and  in  the  second  section 
of  the  act  of  1828,  ch.  50,  there  is  this  additional  provision  : 
"that,  if  such  sheriff  or  officer  shall  produce  the  body  of  such 
person,  so  nrrested,  on  the  return  day  of  such  attachment  or 
capias,  or  during  the  term  of  the  court  to  which  the  writ  is  or 
may  be  returnable,  then,  and  in  such  case,  the  said  sheriff,  or 
other  officer,  shall  not  be  liable  for  any  intermediate  escape, 
&c."  By  what  rule  of  construction  this  act  is  to  be  confined 
to  arrests  and  returns  on  mesne  process  only,  we  are  at  a  loss 
to  discover.  The  language  is  any  attachment  or  capias. 

Finding  no  expression  in  the  statute  of  1828,  ch.  50,  which 
limits  and  confines  it  to  a  capias  on  mesne  process,  the  letter 
and  reason  of  the  statute,  and  the  policy  of  the  law,  making 
it  as  applicable  to  final,  as  mesne  process,  we  can  see  no  rea- 
son for  such  a  construction  ;  and  what  is  conclusive,  such  was 
the  law  in  relation  to  arrests  on  mesne  process  before  the  pas- 
sage of  the  act  of  1828,  ch.  10. 


70  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Croe.jy,  vs.  Lawson  et  al. — 1844. 


The  return  then  of  cepi  by  the  sheriff,  (if  true  in  fact,)  not- 
withstanding the  party  arrested  had  been  seen  going  at  large 
and  residing  at  Vicksburg  in  February,  provided  the  sheriff 
had  him  in  his  custody  ready  to  be  delivered  up  at  the  return 
of  the  writ,  on  the  demand  of  the  party  at  whose  instance  the 
capias  was  issued,  was  in  law  a  performance  of  his  duty,  and 
exonerated  him  from  liability  in  an  action  on  his  bond  for  an 
escape.  But  at  the  trial  below,  the  plaintiff  alleged  that  the 
return  was  not  true  in  fact;  that  the  sheriff  had  not  the  party 
so  arrested  in  court;  and  offered  evidence  to  prove  that  the 
return  of  the  sheriff  was  not  true,  and  upon  the  evidence  thus 
submitted  to  the  jury,  prated  the  court  to  instruct  the  jury,  that 
they  must  find  for  the  plaintiff,  "unless  the  defendants  proved 
to  the  satisfaction  of  the  jury  that  the  defendant,  Lawson,  (the 
sheriff,)  had  the  body  of  the  said  Tucker  (tie  party  arrested 
on  the  capias,}  before  Charles  county  court  at  March  term  1837, 
to  render  him  in  execution  for  the  debt  before  mentioned,  ac- 
cording to  the  exigency  of  the  writ  of  ca.  sa."  This  instruc- 
tion the  county  court  gave,  and  we  think,  correctly  gave. 

The  sheriff's  return  was  only  prima  facie  evidence  of  the 
truth  of  the  facts  which  it  averred,  and  the  plaintiff  having 
offered  proof  admissible  to  the  jury  for  the  purpose  of  rebutting 
the  prima  facie  evidence  of  the  truth  of  the  sheriff's  return, 
the  court  did  right  to  give  the  instruction  which  they  did  give. 

At  the  trial  of  the  cause,  the  defendants  offered  to  prove  to 
the  jury  by  competent  witnesses,  (for  the  purpose  of  mitigat- 
ing the  damages,)  that  Tucker,  for  whose  escape  the  action 
was  brought,  was,  at  the  time  of  issuing  the  capias,  and  so 
continued  to  be,  insolvent  and  unable  to  pay  his  debts.  To 
the  admissibility  of  which  testimony  the  plaintiff  objected,  and 
the  court  sustained  the  objection,  and  refused  to  permit  the 
evidence  for  that  purpose  to  go  to  the  jury,  and  instructed  the 
jury  that  the  sum  recovered  in  the  original  judgment,  with 
interest  thereon  to  that  lime,  together  with  all  costs,  was  the 
proper  measure  of  damages  which  the  plaintiff  was  entitled 
to  recover,  if  they  from  the  evidence  should  find  for  the  plain- 
tiff. To  this  refusal  and  instruction,  the  defendant  excepted. 


OF  MARYLAND.  71 


State,  use  of  Creecy,  vs.  Lawson  et  al. — 1844. 


This  instruction  and  exception  present  the  question,  whe- 
ther in  an  action  on  the  official  bond  of  a  sheriff' for  an  escape 
of  a  party  arrested  by  him  on  capias  ad  satisfaciendum^  it  is 
competent  for  him  to  offer  in  evidence  any  facts  to  mitigate 
the  damages,  and,  whether  the  proper  and  only  measure  of 
damages  is  the  amount  of  the  judgment,  interest,  and  costs,  on 
which  the  capias  ad  satisfaciendum  issued  ? 

It  is  settled  by  authority,  that,  in  an  action  on  the  case  for 
an  escape  at  common  law,  it  was  competent  for  the  defendant 
to  offer  such  evidence  for  such  a  purpose.  Vide  Sel.  JV*.  P. 
504,  tit.  Debt,  for  this  position. 

This  was  the  only  remedy  a  plaintiff  had  at  common  law, 
until  the  statute  of  West.  (13th  Ed.  1,  ch.  11.)  and  1  R.  2, 
ch.  12.  These  statutes  first  gave  the  action  of  debt  against  a 
goaler  or  sheriff  for  an  escape.  Where  this  remedy  is  employed 
under  the  statutes,  the  sheriff  is  put  in  the  same  situation  in 
which  the  original  debtor  stood,  and  the  jury  cannot  give  a 
less  sum  than  the  creditor  would  have  recovered  against  the 
defendant  in  the  original  suit. 

This  is  the  penalty  which  the  statutes  referred  to,  annexed 
to  such  a  default  on  the  part  of  the  sheriff.  But  the  remedy 
employed  in  this  case  is  neither  the  action  on  the  case  at  com- 
mon law,  nor  of  debt  under  the  statutes  of  West.  $f  Richard; 
but  an  action  of  debt  on  a  bond  with  a  collateral  condition, 
for  the  faithful  discharge  of  official  duties  as  sheriff.  The  bond, 
it  is  true,  is  a  statutory  bond,  but  the  remedy  on  the  bond  is 
the  common  law  remedy  of  action  of  debt  on  a  bond  with  a 
penalty. 

At  common  law,  where  judgments  were  rendered  on  such 
bonds,  they  were  for  the  penalty,  and  the  plaintiff  could  take 
out  execution  for  the  same,  although  the  penalty  far  exceeded 
in  amount  the  damages  which  he  had  sustained  by  the  breach 
of  the  condition  of  the  bond. 

The  only  relief  which  a  defendant  could  have  was  from  the 
interposition  of  a  court  of  equity,  which  would  direct  an  issue 
of  quantum  damnificatus,  and  prevent  an  execution  being  en- 
forced for  more  than  the  actual  damages.  To  remedy  this 


72  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Creecy,  »«.  Lawson  et  al. — 1844. 

hardship  and  to  avoid  this  circuitous  mode  of  relief  to  which 
defendants  thus  situated  were  driven,  the  Stat.  8  and  9  William 
3,  ch.  11,  was  enacted.  This  statute  has  been  adopted  in 
Maryland,  and  this  case  being  within  the  equitable  provisions 
of  the  statute,  the  defendant  is  liable  to  no  greater  damages 
than  the  plaintiff  has  actually  sustained,  to  be  ascertained  by 
the  verdict  of  a  jury  under  the  8th  sec.  of  the  llth  ch.  of  the 
stat.  8  and  9  William  3 ;  Perkins  et  al  vs.  Giles,  governor,  9 
Leigh1  s  R.  397. 

We  cannot  see  the  force  of  the  argument  of  the  appellee's 
counsel,  which  insisted  that  the  judgment  and  costs  on  which 
the  writ  of  ca.  sa.  issued,  was  the  only  measure  of  damages, 
and  which  could  not  be  mitigated  by  any  testimony;  or  in  other 
words,  that  any  evidence  for  such  purpose  was  inadmissible. 

The  object  of  the  statute  which  requires  the  sheriff's  bond 
and  prescribes  its  condition,  was  to  provide  more  ample  security 
to  all  persons  interested  in  its  faithful  performance;  not  to  in- 
crease his  obligations,  or  to  render  a  more  summary  redress  for 
his  defalcations,  than  existed  by  action  on  the  case  at  common 
law,  and  therefore  not  to  conclude  him  from  any  defence  which 
he  had  in  that  action. 

If,  in  a  suit  before  the  bond  wns  required,  actual  damages 
only  could  be  recovered,  unless  the  action,  under  the  statutes 
of  West.  13  Ed.  1,  ch.  11,  and  1  R.  2,  ch.  12,  was  adopted, 
why  should  the  amount  to  be  recovered  be  different  after  the 
bond?  A  suit  on  the  bond  is  no  more  a  pursuit  of  the  remedy 
prescribed  by  the  statutes,  than  was  the  action  on  the  case. 

The  argument  derived  from  the  fact,  that,  in  certain  cases 
the  damages  are  certain,  and  must  be  measured  by  a  certain 
standard,  does  not  prove  that  such  must  be  the  case  here. 
There  are  many  instances  in  which,  on  the  assignment  or  sug- 
gestion of  breaches  under  the  statute  8  and  9  William  3,  the 
measure  of  damages  is  fixed  and  certain  ;  but  they  arise  from 
the  peculiar  circumstances  of  each  particular  case,  not  from 
any  general  rule,  which  can  be  applied  to  this  case  in  common 
with  them,  and  where  no  such  particular  reason  exists  for  the 
exact  measure  of  damages,  the  party  can  only  recover  what 


OF  MARYLAND.  73 


State,  use  of  Creecy,  vs.  Lawson,  et  al. — 1844. 


the  jury  shall  believe  he  may  have  actually  sustained,  after  a  full 
investigation  of  all  the  facts. 

There  are  also  cases  referred  to,  in  •which  the  court  will 
assess  the  damages  without  requiring  the  forms  to  be  pursued 
which  the  statute  8  and  9  William  3,  prescribed,  in  assigning 
breaches,  and  the  cases  of  bail  bonds,  and  others,  have  been 
instanced.  But  it  will  hardly  be  contended,  that  on  a  judg- 
ment by  default  in  a  suit  on  a  sheriff's  bond  for  an  escape, 
the  court  would  assume  the  power  of  assessing  damages,  and 
giving  final  judgment,  assuming  that  the  cases  respecting 
bail  bonds,  &c.,  are  recognised  as  the  law  and  practice  of  the 
courts  in  Maryland,  which  we  by  no  means  intend  to  assert. 

There  appears  to  be  less  reason  for  considering  the  plaintiff 
necessarily  entitled  to  recover  in  this  action  the  full  amount  of 
his  debt,  because  there  is  a  perfect  remedy  afforded  him  by  the 
act  of  1768,  ch.  10,  sec.  1,  which  enables  any  plaintiff  in  an 
execution  to  call  upon  the  sheriff  to  produce  the  body  of  the 
defendant  before  the  court,  and  on  his  default,  on  motion  to 
cause  judgment  to  be  entered  up  for  the  full  amount  of  his 
claim,  principal,  interest,,  and  costs. 

If  the  plaintiff  had  thought  proper  to  adopt  this  remedy  he 
could  have  had  his  remedy  on  the  bond,  and  on  assigning  as 
a  breach  the  non-payment  of  such  a  judgment  against  the 
sheriff  the  securities  would  clearly  be  liable  for  the  full  amount, 
as  in  such  case  the  judgment  against  the  sheriff  would  be  the 
proper  measure  of  damages  ;  and  as  the  plaintiff  in  this  case 
has  forborne  to  pursue  this  mean  of  redress,  he  cannot  com- 
plain. It  has  been  erroneously  supposed  this  act  of  Assembly 
was  merged  in  that  of  1794,  ch.  54.  This  act  is  now,  and 
always  since  its  passage,  has  been  in  full  force  and  frequently 
pursued  in  practice. 

By  the  decision  on  the  first  bill  of  exceptions,  it  has  been 
determined  that  it  was  incumbent  on  the  defendant  to  shew 
that  he  had  the  body  of  Tucker  before  Charles  county  court  at 
March  term  1837.  The  first  instruction  of  the  third  prayer 
could  not  therefore  be  granted. 
10  v.2 


74  CASES  IN  THE  COURT  OF  APPEALS 

Benson  vs.  Boteler. — 1844. 


We  also  think  the  court  were  right  in  refusing  the  second 
instruction  in  the  third  prayer;  for,  although  the  sheriff  may 
not  have  been  called  on  to  return  the  ca.  sa.  against  Tuckery 
such  failure  on  the  part  of  the  plaintiff  would  furnish  no  ground 
for  any  presumption  that  the  defendant  was  discharged  out  of 
the  custody  of  the  sheriff  by  the  consent  of  the  plaintiff.  The 
failure  of  the  plaintiff  to  pursue  one  legal  remedy  against  the 
sheriff,  could  not  upon  any  sound  principle  be  construed  into 
an  abandonment  of  another,  or  into  a  consent  to  Tucker's 
discharge. 

We  think  our  reasoning  and  conclusions  are  alike  applicable 
to  the  fourth  as  the  third  exception. 

We  concur  with  the  county  court  in  the  fifth  exception. 
The  instruction  therein  asked,  if  granted,  would  make  the 
sheriff's  return,  whether  true  or  false,  conclusive. 

The  case  is  therefore  reversed  on  the  second  exception,  aud 
procedendo  awarded. 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 


CEPHAS  R.  BENSON   vs.  RICHARD  BOTELER. — Dec.   1844. 

The  condition  of  B's  bond  of  the  30th  May,  1835,  recited,  that  in  conside- 
ration of  $500,  and  three  promissory  notes  amounting  to  $500,  he  would 
convey  to  R.  a  certain  house  and  lot,  when  all  the  conditions  of  his  bond 
should  be  complied  with — at  the  foot  of  this  bond  was  a  receipt  for  $500  : 
another  paper  signed  by  B.,  dated  in  1841,  certified,  that  he  had  taken  back 
the  house  and  lot,  for  the  same  amount  of  money  which  R.  agreed  for  and 
purchased  of  him,  and  "feel  myself  bound  for  the  same  amount."  R. 
took  possession  of  the  house  in  1835 ;  and  remained  there  until  1840 ; 
the  rent  of  which  was  worth  $90  per  annum.  In  an  action  brought  upon 
the  agreement  of  1841,  to  recover  the  $500,  HELD  :  that  the  defendant  was 
bound  to  return  to  the  plaintiff  the  amount,  if  any,  which  the  jury  should 
find  was  paid  by  him  to  the  defendant,  under  the  contract  of  1835;  that 
the  value  of  the  use  and  occupation  was  not  to  be  deducted  from  such  sum  ; 
and  that  the  contract  of  1841  was  a  re-purchase. 

The  possession  by  the  plaintiff  cf  a  paper  signed  by  the  defendant,  and  on 
which  the  former  had  brought  an  action  at  law,  is  sufficient  evidence  from 
which  the  jury  might  find  it  to  be  the  agreement  of  the  parties. 


OF  MARYLAND.  75 


Benson  r».  Boteler.— 1844. 


APPEAL  from  Prince  George's  county  court. 

This  was  an  action  of  trespass  upon  the  case,  brought  on 
the  18th  May,  1842,  by  the  appellant  against  the  appellee. 

The  plaintiff  declared  upon  the  sale  of  the  house,  &c.,  and 
the  agreement  of  the  defendant  to  take  the  property  back, 
and  a  special  assumpsit  to  repay,  as  mentioned  in  the  bill  of 
exceptions.  The  defendant  pleaded  non  assumpsit,  on  which 
issue  was  joined.  The  verdict  was  for  the  plaintiff. 

At  the  trial  of  this  cause,  the  plaintiff  to  maintain  the  issue 
on  his  part,  read  to  the  jury  the  following  papers,  to  wit : 

"  Know  all  men  by  these  presents,  that  I,  Cephas  R.  Ben- 
son, of  &c.,  am  held  and  firmly  bound  unto  Richard  Butler, 
in  the  full  and  just  sum  of  two  thousand  dollars,  current 
money  of  the  United  States,  to  be  paid  to  the  said  Richard 
Butler,  his  heirs  or  assigns,  for  which  payment  well  and  truly 
to  be  made  and  done,  I,  the  said  C.  R.  B.,  bind  myself, 
my  &c.  Sealed  with  my  seal  and  dated  this  30th  May,  1835. 

The  condition  of  the  above  obligation  is  such,  that  if  the 
above  bound  C.  R.  B.  shall,  for  and  in  consideration  of  $500, 
as  aforesaid,  paid  in  hand,  and  one  promissory  note  of  the 
date  aforesaid,  payable  two  years  after  the  date  aforesaid,  for 
$166. 66|,  with  legal  interest  thereon  from  the  date  aforesaid, 
until  paid,  and  one  promissory  note  payable  in  four  years  from 
the  date  aforesaid,  for  $166. 66§,  with  legal  interest  thereon, 
until  paid,  as  aforesaid,  and  one  promissory  note  for  $166. 66§, 
payable  in  six  years  from  the  date  aforesaid,  with  interest 
thereon  as  aforesaid,  then  the  said  C.  R.  B.  shall  convey  unto 
the  said  R.  B.,  a  certain  house  and  lot  by  good  and  sufficient 
deed,  lying  and  being  in  the  town  of  Queen  Ann,  in  &c.,  con- 
taining one  acre  of  land,  more  or  less,  and  generally  known  as 
Sparrow's  Tavern,  when  all  the  conditions  of  this  bond  or 
obligation  are  complied  with  ;  then  this  obligation  to  be  void 
and  of  none  effect,  otherwise,  of  full  force  and  virtue  in  law. 

CEPHAS  R.  BENSON,  (Seal.) 
Witness,  John  Claytor. 

Queen  Ann,  May  30th,  1835.  Received  of  Richard  But- 
ler the  sum  of  five  hundred  dollars,  the  same  being  the  cash 
payment  mentioned  in  the  annexed  bond.  C.  R.  B." 


76  CASES  IN  THE  COURT  OF  APPEALS 

Benson  r».  Boteler. — 1844. 

And  proved  the  same  to  be  in  the  hand  writing  of  the 
said  defendant ;  and  also  read  to  the  jury  the  following  paper, 
to  wit : 

"  I  hereby  certify,  that  I  have  taken  back  the  house  and  lot 
in  Queen  Ann  for  the  same  amount  of  money  which  Richard 
Butler  agreed  for,  and  purchased  of  me,  and  feel  myself  bound 
for  the  said  amount.  Given  under  my  hand  and  seal  this  24th 
day  of  August,  1841.  C.  R.  BENSON. 

Test,—S.  H.  B." 

And  proved  the  same  to  be  iu  the  hand  writing  of  the 
defendant. 

The  defendant  then  proved  to  the  jury,  that  the  plaintiff 
R.  5.,  took  possession  of  the  said  house  and  lot  mentioned  in 
the  said  bond  of  conveyance,  on  or  about  the  date  thereof, 
and  remained  in  the  possession  thereof  until  the  year  1840. 
And  then  proved  to  the  jury,  that  the  sum  of  ninety  dollars 
was  the  fair  and  reasonable  value  of  the  said  house  and  lot 
per  annum,  from  the  said  30th  April,  1835,  to  the  said 
year,  1841. 

Thereupon  the  defendant  prayed  the  court  to  instruct  the 
jury,  that  if  they  find  from  the  evidence  in  the  cause,  that 
trora  the  time  of  the  contract  of  sale  from  defendant  to  plain- 
tiff in  1835  to  the  year  1840,  the  said  plaintiff  was  in  the  pos- 
session of  the  said  house  and  lot,  or  received  the  rents  and 
profits  thereof  under  the  aforesaid  contract  of  sale,  that  then 
by  the  legal  construction  of  the  agreement  or  instrument  of 
writing  relied  on  and  declared  upon  in  the  present  action,  the 
plaintiff  is  only  entitled  to  recover  the  difference  in  his  favor, 
if  any,  between  the  original  cash  payment  of  five  hundred 
dollars,  and  the  value  of  the  use  and  occupation  of  the  said 
house  and  lot  for  the  time  it  was  so  sold  by  the  plaintiff;  which 
opinion  and  instruction  the  court  (STEPHEN,  C.  J.)  refused  to 
give;  but  were  of  opinion  and  so  instructed  the  jury,  that  by 
the  legal  construction  of  said  instrument  of  writing,  the  de- 
fendant was  bound  to  refund  to  the  plaintiff  the  amount,  if 
any,  which  the  jury  shall  find  was  paid  by  him  to  the  said 
defendant  for  said  house  and  lot,  provided  they  find  the  con- 


OK  MARYLAND.  77 


Benson  us.  Boteler. — 1844. 


tract  of  August  1841  to  have  been  made  between  the  parties. 
To  which  opinion  of  the  court  as  given  to  the  jury,  and  to 
their  refusal  to  grant  the  defendant's  prayer,  the  defendant 
excepted. 

The  defendant  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  CHAMBERS,  SPENCE, 
STONE  and  SEMMES,  J. 

By  TUCK  for  the  appellant,  and 
By  PRATT  for  the  appellee. 

STONE,  J.,  delivered  the  opinion  of  this  court. 

The  county  court  having  referred  to  the  jury  the  evidence 
offered  of  the  facts,  that  the  paper  of  August  1841,  was  the 
agreement  of  the  parties ;  that  is,  that  the  paper  was  made  and 
delivered  by  the  defendant,  and  accepted  and  assented  to  by 
the  plaintiff;  and  also,  the  amount  of  money  to  be  paid  by  the 
defendant  to  the  plaintiff,  and  predicating  their  opinion  upon 
the  hypothesis  that  these  facts  might  be  found  by  the  jury, 
proceed  in  the  instructions  given  to  construe  the  paper  of 
August  1841  as  a  memorandum  of  an  agreement  between  the 
parties  for  a  re-purchase  of  the  same  property  at  the  same 
price  it  had  been  in  1835  contracted  to  be  sold  by  the  defen- 
dant to  the  plaintiff,  and  therefore,  that  the  amount  to  be 
refunded  was  subject  to  no  abatement  for  the  value  of  use  and 
occupation  while  held  under  the  first  contract. 

It  is  insisted,  that  by  the  true  construction  of  this  paper  of 
August  1841,  it  is  only  an  agreement  to  rescind  the  contract 
of  1835,  and  that  when  the  money  paid  upon  a  rescinded 
contract  is  sought  to  be  recovered  back,  an  abatement  or  de- 
duction is  to  be  made  from  that  amount,  for  the  value  of  use 
and  occupation  while  the  property  was  held  under  the  contract 
of  sale.  It  is  further  insisted,  that  there  was  no  legally  suffi- 
cient evidence  offered,  tending  to  prove  the  paper  of  August 
1841  was  the  agreement  of  the  parties,  and  therefore,  the 
finding  of  that  fact  ought  not  to  have  been  submitted  to  the 


78  ''AMES  IN  THK  COUKT  OK  APPKALS 


Benson  v».  Boteler. — 1844. 


In  construing  written  instruments,  the  first  and  chief  object 
is  to  ascertain  the  meaning  of  the  parties,  and  the  intention 
as  expressed,  unless  contravening  some  rule  of  law,  is  to  be 
carried  into  effect,  9  Gill  fy  John.  77.  The  paper  of  August 
1841,  referring  to  the  contract  of  1835,  to  ascertain  the  amount 
and  designate  the  property,  and  declaring  an  agreement  had 
been  made  to  take  back  the  same  property,  contracted  to  be 
purchased  in  1835,  at  the  same  amount  paid  at  that  time, 
shows  clearly  that  the  first  contract  of  sale  was  not  rescinded, 
but  that  a  new  contract  to  purchase  back  the  same  property  at 
a  fixed  price  had  been  then  made,  to  take  effect  from  its  date. 
The  first  contract  stood  in  full  force  until  the  agreement  of 
August  1841  was  made,  and  all  the  rights  acquired  under  the 
contract  of  1835  remained  unimpaired  up  to  August  1841. 
The  use  and  occupation  of  the  property  so  contracted  for  in 
1835,  was  a  right  thereby  acquired;  he  could  not,  therefore,  be 
liable  to  the  defendant  for  the  value  of  such  use  and  occupa- 
tion. 

As  to  the  second  objection,  after  the  opinion  above  expressed, 
it  is  only  necessary  to  say  that  the  paper  of  August  1841, 
being  proved  to  have  been  signed  by  the  defendant,  the  pos- 
session thereof  by  the  plaintiff  and,  pursuit  of  his  remedy  there- 
on, was  sufficient  evidence  from  which  the  jury  might  find  it 
to  be  the  agreement  of  the  parties.  The  possession  of  the 
obligee  in  a  bond  is  evidence  of  its  delivery,  1  H.  fy  /.  323. 
This  agreement  contains  an  obligation  on  the  part  of  the  de- 
fendant to  pay  the  same  amount  of  money  which  had  been 
received  by  him  on  the  contract  of  1835.  It  also  states  the 
consideration  for  this  obligation.  The  consideration  being  the 
taking  back  from  the  plaintiff  the  property  contracted  to  be 
sold  to  him  in  1835,  the  inference  is  irresistible,  that  the  pay- 
ment was  to  be  made  to  the  plaintiff:  he  therefore  stands  in  the 
same  attitude  as  an  obligee  in  a  bond,  and  it  would  have  been 
error  in  the  court  to  take  from  the  jury  a  fact  of  which  there 
was  evidence  legally  sufficient  offered,  10  G.  #  J.  346.  Con- 
curring in  opinion  with  the  county  court,  we  affirm  the  judg- 
ment. JUDGMENT  AFFIRMED. 


OF  MARYLAND.  79 


State,  use  of  Holton,  vs.  Burke,  et  al.— 1844. 


THE  STATE,  USE  OF  JOHN  HOLTON,  vs.  GARRET  BURKE,  JOHN 
DULANY  AND  BENEDICT  I.  FENWicK. — December  1844. 

By  tho  act  of  1834,  ch.  336,  (passed  21st  March  1835,)  any  surety  for  the 
appearance  of  an  insolvent  petitioner  is  authorised  to  bring  him  into  court, 
or  before  any  judge  thereof,  as  special  bail  may  bring  their  principal  into 
court,  and  when  brought  in,  to  surrender  and  commit  him,  provided  that 
he  be  so  surrendered  before  or  at  the  first  term  to  which  suit  shall  bo  brought 
upon  the  bond  for  the  appearance  of  such  petitioner.  HELD  : 

1.  That  such  bonds  are  now  assimilated  to  bail  bonds. 

2.  That  the  surety  of  such  insolvent  petitioner  may  surrender  him  at  or  be- 
fore the  first  term  of  suit  brought  on  such  appearance  bond. 

3.  That  the  act  applied  to  a  bond  executed  on  the  12th  March  1835,  the  con- 
dition of  which  was  not  broken  at  the  date  of  the  passage  of  the  act  of 
1834,  ch.  336,  and  modified  the  remedy  thereon. 

4.  That  the  surety  is  only  called  upon  to  exert  his  privilege  under  the  act  of 
1834,  after  he  is  sued. 

APPEAL  from  Si.  Mary's  County  Court. 

This  was  an  action  of  debt,  commenced  on  the  19th  Septem- 
ber, 1839,  by  the  appellants,  who  declared  upon  the  bond  of 
the  appellees,  dated  the  12th  March,  1835,  containing  the  fol- 
lowing recital  and  condition : 

"  Whereas  the  above  bound  Garret  Burke  hath  obtained 
his  discharge  from  the  common  jail  of  St.  Mary^s  county,  by 
virtue  of  the  provisions  of  an  act  of  the  General  Assembly  of 
the  State  of  Maryland,  passed  at  November  session,  eighteen 
hundred  and  five,  entitled,  an  act  for  the  relief  of  sundry 
insolvent  debtors,  and  the  several  supplements  thereto.  Now 
the  condition  of  the  above  obligation  is  such,  that  if  the  above 
bound  Garret  Burke  do,  and  shall  well  and  truly  make  his 
personal  appearance  at  the  county  court,  to  be  held  at  Leonard 
town,  in  and  for  St.  Mary^s  county,  on  the  first  Monday  of 
Jlugust  following  the  date  hereof,  before  the  judges  of  said 
court,  from  day  to  day,  and  not  depart  therefrom  without  leave 
of  the  said  court  first  had  and  obtained,  and  do  and  shall 
make  his  personal  appearance  at  all  such  other  times  and 
places  as  shall  by  the  said  court  be  directed  and  appointed, 
then  this  obligation  to  be  void  and  of  none  effect." 


80  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Holton,  vs.  Burke,  et  al. — 1844. 

The  defendants  pleaded  general  performance  of  the  condi- 
tion of  the  bond,  and  the  plaintiff  replied,  that  the  said  Garret 
Burke  did  not  make  his  personal  appearance  before  the  judges 
of,  &c.,  at  August  term  of  St.  Mary's  county  court,  held  on 
the  first  Monday  of  August,  1835,  according  to  the  condition 
of  his  bond  ;  nor  at  March  court,  1836,  although  so  required 
to  do  by  order  of  said  St.  Mary's  county  court ;  nor  at  March 
court,  1838;  nor  at  August  court,  1838;  nor  at  March  court, 
1839  ;  although  so  required  to  do  by  order  of  St.  Mary's 
county  court;  to  which  said  several  terms  of  St.  Mary's 
county  court,  the  petition  of  the  said  Garret  was  continued, 
and  his  appearance  required  by  the  orders  of  the  said  court 
passed  in  the  premises,  which  will  more  fully  appear  by 
reference  to  the  records  of  said  court,  now  in  said  court 
remaining,  as  by  the  condition  of  the  said  writing  obligatory, 
he  was  required  to  do  ;  whereupon  the  said  State  avers,  ihat 
the  said  Garret  Burke  has  not  done  all  and  every  thing  he 
was  required  to  do  and  perform  by  the  condition  of  the  said 
writing  obligatory  ;  and  the  said  State  further  saith,  that  at  St. 
Mary's  county  court,  held  at  Leonard  town  on  the  first  Mon- 
day of  August,  1837,  a  certain  Thomas  Jones,  by  judgment 
of  the  said  court,  recovered  against  the  said  Garret  Burke  and 
John  Holton,  survivors  of  Thomas  R.  Johnson,  the  sum  of. 
&c. ;  which  said  judgment,  the  said  State  avers,  was  for  a 
debt  due  before  the  execution  of  the  said  writing  obligatory  ; 
and  the  said  State  further  avers,  that  ihe  judgment  aforesaid, 
was  rendered  against  the  said  Garret  Burke  and  John  Holton 
as  co-securities  of  the  said  Thomas  R.  Johnson,  and  that  the 
said  John  Holton,  at  whose  instance  and  for  whose  use  this 
suit  is  instituted,  paid  and  satisfied  the  whole  of  said  judg- 
ment, and  the  same  is  assigned  to  his  use ;  and,  except  by 
him,  the  said  judgment  remains  in  St.  Mary's  county  court 
no  way  satisfied  or  reversed  ;  and  this,  the  said  State,  is  ready 
to  verify  :  wherefore  the  said  State  prays  judgment  for  the 
debt  aforesaid,  and  damages  to  the  said  State  for  the  detention 
of  that  debt,  to  be  adjudged,  &c. 


OF  MARYLAND.  81 


State,  use  of  Holton,  rx.  Burke,  et  ul.— 1844. 


The  defendants  rejoined,  that  at  the  first  term  to  which  they 
were  sued,  to  wit,  the  March  term  of  St.  Mary^s  county  court 
1840,  the  said  defendants  delivered  up  the  said  Garret  in  dis- 
charge of  the  liability  on  the  said  bond  under  the  provisions 
of  the  act  of  Assembly  in  such  case  made  and  provided,  and 
that  the  said  Garret  was  so  surrendered  in  court,  and  by  order 
of  the  court,  and  on  the  2nd  day  of  March  1840,  committed 
to  the  custody  of  the  sheriff,  and  this  the  defendants  are  ready 
to  verify;  wherefore,  &c. 

The  plaintiffs  demurred  generally  to  the  rejoinder,  in  which 
the  defendants  joined,  and  the  parties  agreed  that  all  errors  in 
pleading  shall  be  and  are  hereby  released. 

The  county  court  rendered  judgment  on  the  demurrer  for 
the  defendants,  and  the  plaintiffs  below  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  CHAMBERS,  SPENCE 
and  STONE,  J. 

By  GRAIN  for  the  appellants,  and 
By  ALEXANDER,  for  the  appellees. 

STONE,  J.,  delivered  the  opinion  of  this  court. 

The  question  presented  upon  this  appeal  is  whether  the  sur- 
render by  the  securities  of  Burke,  the  principal  in  the  bond, 
and  his  commitment  to  the  sheriff  by  order  of  St.  Mary^s 
county  court,  is  such  performance  of  the  condition  of  said 
bond,  as  discharges  the  securities  from  its  liability. 

According  to  the  provisions  of  the  acts  of  Assembly  of  this 
State  for  the  relief  of  insolvent  debtors  prior  to  1834,  a  peti- 
tioner for  the  benefit  of  these  laws  might  be  compelled  to  give 
bond,  with  security,  for  his  appearance  before  the  court  of  the 
county  in  which  the  petition  was  filed,  or  the  commissioners 
in  Baltimore  city,  as  the  case  might  be,  at  a  time  specified  ;  and 
give  notice  to  creditors  of  his  application,  as  to  enable  them 
to  resist,  if  they  saw  fit,  his  final  discharge ;  and  in  case  the 
final  discharge  was  successfully  resisted,  the  petitioner  being 
present  in  court,  his  creditors  might  have  such  remedies  affect- 
ing his  personal  liberty,  as  are  provided  by  law. 
11  v.2 


82  CASES  IN  THE  COURT  OF  APPEALS 

State,  use  of  Holton,  »*.  Burke,  et  al. — 1844. 

The  object  and  character  of  these  bonds  have  been  assim- 
ilated to  bail  bonds;  if  the  petitioner  failed  to  appear  at  the 
lime  specified,  the  bond  was  forfeited,  and  his  securities  became 
bound  to  each  creditor  for  the  amount  of  his  claim.  This  was 
found  to  press  with  rigor  upon  securities,  who  were  like  bail, 
bound  for  the  appearance  of  the  principal  in  the  bond,  but  had 
none  of  the  power  to  relieve  themselves  which  bail  enjoyed, 
until  by  the  act  of  1834,  the  legislature  passed  an  act  for  their 
benefit,  and  thereby  gave  similar  power  and  authority  to  the 
securities  which  special  bail  had,  to  surrender  the  petitioner 
at  any  time  at  or  before  the  first  court  to  which  suit  was  brought 
upon  the  bond.  This  act  was  passed  before  a  breach  of  the 
condition  of  the  bond  in  this  case  had  occurred.  The  right  of 
the  creditor  to  sue  did  not  attach  until  the  petitioner  had  failed 
to  appear  according  to  the  condition  of  the  bond,  and  the 
remedy  upon  the  bond  was  subject  to  be  controlled  and  modi- 
fied by  the  provisions  of  the  above  mentioned  act  of  Assembly. 

The  facts  alleged  in  the  rejoinder  being  admitted  by  the 
demurrer,  and  all  errors  in  pleading  being  by  consent  released, 
it  is  evident,  that  the  surrender  by  the  securities  of  the  peti- 
tioner, and  the  order  of  court  committing  him  to  the  custody 
of  the  sheriff,  are  within  the  provisions  of  the  act  of  Assembly, 
and  the  securities  are  entitled  to  the  benefits  thereby  provided 
for  them.  They  have  proceeded  according  to  the  power  and 
authority  conferred,  and  so  far  as  the  act  is  directory  to  the 
court,  "omnia  rite  acta  prcesu  rmttttur,"  and  although  years  had 
elapsed  after  the  time  specified  in  the  condition  of  the  bond 
for  the  appearance  of  the  petitioner,  and  although  he  did  not 
in  fact  appear,  yet  this  lapse  of  time  is  attributable  to  the  cred- 
itor in  not  pursuing  his  remedy,  and  when  at  the  first  court 
suit  was  brought  upon  the  bond,  the  petitioner  was  surrender- 
ed, he  had  all  the  remedies  affecting  the  person  of  the  peti- 
tioner provided  by  law.  He  is  therefore  not  injured,  and  has 
no  cause  of  complaint.  JUDGMENT  AFFIRMED. 


OF  MARYLAND.  83 


Brooke,  et  al.  vs.  Berry. — 1844. 


ROBEBT  W.  BROOKE,  AND  MARY  ANN  HIS  WIFE,  AND  OTHERS, 
vs.  WILLIAM  F.  BERRY. — Dec.  1842. 

A  conveyance  obtained  by  a  general  agent  from  his  principal,  will  be  vacated 
for  fraud  in  its  obtention  ;  or,  because  of  the  principal  being  a  man  of  such 
feeble  intellect,  as  to  be  incompetent  to  the  management  of  his  own  busi- 
ness ;  or  in  consequence  of  the  terms  being  so  unjust  and  unequal,  as 
therefore  to  be  unconscientious. 

Exceptions  to  proof  taken  under  a  commission,  will  not  avail  the  party 
making  them,  where  the  only  tendency  of  the  proof  excepted  to,  is  to 
establish  facts  admitted  in  the  defendant's  answer,  or  satisfactorily  proved 
by  other  testimony  which  stands  exempt  from  all  objection. 

A  general  exception  to  all  the  testimony  taken  under  an  ex  parte  commis- 
sion, on  the  ground  that  it  was  vacated  and  set  aside  by  an  order  of 
court  rescinding  an  interlocutory  decree,  to  let  in  a  defendant's  answer, 
cannot  be  sustained,  when  the  proof  was  taken  prior  to  the  rescision  of 
such  decree. 

The  act  of  1820,  ch.  161,  sec.  3,  provides,  that  the  filing  of  an  answer,  after 
an  interlocutory  decree  is  rescinded  under  that  act,  shall  in  no  case  affect 
the  validity  of  any  commission  previously  issued  to  take  testimony,  or  the 
proceedings  under  it,  or  of  any  testimony  previously  taken  and  returned 
under  any  such  commission  :  the  efficacy  of  the  proof  is  the  same,  whether 
previously  or  subsequently  returned  into  court. 

Notice  of  the  execution  of  an  ex  parte  commission,  under  the  act  of  1820, 
need  not  be  given  to  the  defendant  He  has  no  power,  either  to  offer  proof 
under  such  commission,  or  to  cross-examine  the  complainant's  witnesses. 

Where  a  deed  to  a  party  is  impeached  as  fraudulent,  he  cannot  offer  evidence 
of  his  good  character  and  general  upright  conduct,  in  support  of  such 
deed. 

The  feeble  intellect  of  a  grantor;  the  relation  of  principal  and  general  agent 
between  him  and  the  grantee ;  inadequacy  of  price  for  land  conveyed  by 
such  a  grantor  to  such  a.  grantee ;  are  all  circumstances  calculated  to 
impeach  a  deed,  as  constructively  fraudulent. 

Where  there  is  great  contrariety  of  evidence  as  to  the  feebleness  of  a  grantor's 
intellect,  as  twelve  witnesses  for  it  and  nine  against  it,  the  admission  of 
his  grantee,  his  general  agent,  that  such  grantor  was  incapable  of  trans- 
acting his  own  business,  will  corroborate  the  affirmative  of  that  issue. 

Such  evidence  is  sufficient  to  control  a  defendant's  answer,  denying  the  fact 
of  mental  incapacity. 

The  effect  of  the  averages  of  witnesses  as  to  value  of  lands  and  rents,  stated 
and  discussed. 

The  value  of  land  ascertained  by  considering  its  annual  rents,  as  equal  to 
five  per  centum  on  such  value. 

Gifts  procured  by  agents,  and  purchases  made  by  them  from  their  principals, 
should  be  scrutinized  with  a  close  and  vigilant  suspicion. 


84  CASES  IN  THK  COURT  OF  AITKALS 

Brooke,  et  al.  vs.  Berry. — 1844. 

Agents  arc  not  permitted  to  deal  validly  with  their  principals  in  any  caso, 
except  where  there  is  the  most  entile  good  faith,  and  a  full  disclosure  of  all 
facts  and  circumstances,  and  an  absence  of  all  undue  influence,  advantage, 
or  imposition. 

Circumstances  in  the  conduct,  action  and  life  of  a  grantor,  stated  and  dis- 
cussed, from  which  a  court  of  equity  will  infer  his  mental  imbecility,  or, 
that  undue  influence  had  been  exercised  towards  him  by  his  general  agent. 

Where  a  general  agent  obtains  from  his  principal  a  conveyance  of  lands  at  a 
price  greatly  below  their  value,  this  will,  of  itself,  induce  a  court  of  equity 
to  set  aside  the  contract ;  unless  it  appeared  to  have  been  entered  into,  in  a 
way  and  under  circumstances,  that  there  had  been  no  abuse  of  confidence, 
no  undue  influence,  no  imposition,  or  material  concealment  practised  by 
the  agent  on  his  principal,  which  could  cast  a  shade  of  doubt  as  to  the 
fairness  and  honesty  of  the  transaction. 

In  valid  contracts  between  principal  and  agent,  the  parties  should  meet  on 
equal  terms  ;  and  the  agent  is  bound  to  protect  the  interest  of  his  princi- 
pal,  with  the  same  care  and  circumspection,  that  he  would  his  own ;  if  he 
does  not  thus  deal  with  his  principal,  his  contracts  with  him  are  tainted 
with  suspicion,  and  will  be  set  aside. 

Where  a  court  of  equity  vacated  a  conveyance  of  land  from  a  principal 
to  his  general  agent,  on  the  ground  of  constructive  fraud,  and  of 
which  land  the  grantee  had  possession,  and  decreed  a  sale  of  the 
premises,  it  also  decreed  an  account  between  the  parties,  in  which  the 
grantee  was  to  be  charged  with  the  rents  and  profits  of  the  land,  and  cre- 
dited for  his  improvements  thereon,  during  the  time  he  held  and  enjoyed 
the  lands,  under  his  alleged  purchase  ;  and  with  all  sums  by  him  bona 
fide  paid,  on  account  of  his  principal,  or  which  should  be  justly  due  and 
owing  from  him  to  his  agent. 

APPEAL  from  the  Court  of  Chancery. 

The  bill  in  this  cause  was  filed  on  the  27th  January,  1841, 
by  Elishn  Berry  ;  Robert  W.  Brooke  and  Mary  Ann,  his  wfe  ; 
Louisa,  William,  Nancy  and  Eliza  Berry,  (the  three  last 
named  being  infants,)  and  alleged,  that  the  said  E.  B.,  who 
is  the  father  of  all  the  other  complainants,  except  the  said  R. 
W.  B.,  being  seized  and  possessed  of  considerable  property 
and  estates,  both  real  and  personal,  lying,  &c.  ;  and  being 
naturally  of  a  feeble  and  weak  mind  and  intellect,  and  there- 
fore, incapable  of  managing  the  same  with  profit  or  advantage 
to  himself  and  family,  or  to  take  care  thereof,  or  to  transact 
business  generally  with  prudence,  or  even  safety,  was  induced 
on  or  about  the  7th  May,  1836,  by  the  artful  persuasion  and 
management  of  a  certain  William  F.  Berry,  the  defendant, 


OF  MARYLAND.  85 

Brooke,  et  al.  vs.  Berry. — 1844. 


and  who  is  the  natural  brother  of  the  half  blood  of  the  said 
Elisha,  in  whom  he  had  the  most  unlimited  confidence,  and 
who  possessed  the  most  unbounded   influence  over  him,  to 
commit  and  entrust  to  him,  the  said  W.  F.  B.,  the  sole  and 
exclusive  charge,  management  and  control,  of  all  of  the  said 
property;    and  made  and  constituted  him  the  agent  for  the 
transaction  of  all  the  business  concerns  of  him,  the  said  E., 
whatsoever.     That  in  virtue  of  the  confidence  thus  reposed  in 
him,  and  the  authority  and  power  so  conferred  on  him  by  the 
said  jE.,  as  his  agent,  the  said  W.  F.  B.  continued  to  manage 
and  control  the  property  of  the  said  E,y  as  aforesaid,  from  the 
period  of  time  above  stated,  until  about  the  24th  February, 
1840;  when  the  said  E.  having  just  grounds  to  apprehend 
and  believe  that  the  said  W.  F.  B.  had  greatly  abused  the 
confidence  he  had  reposed  in  him,  and  was  seeking  to  enrich 
himself  at  the  expense  of,  and  out  of  the  substance  and  pro- 
perty of  the   said  E.,  he  determined  to  revoke    the   agency 
which  he  had  conferred  on  the  said  W.  F.  5.,  as  aforesaid, 
and  to  withdraw  the  said  property  from*  his  management  and 
control,  which    was    accordingly  done ;  that  the  numberless 
impositions  which  before  this  time  had  been  practiced  upon, 
and  the  advantages  which  had  been  taken  of  the  said  E.,  in 
relation  to  his  said   property,  as  well  by  the  said  W.  F.  B.  as 
by  other  persons,  rendered   it  then  but  too  apparent  and  evi- 
dent, that  the    said    property  was    altogether    insecure,    and 
would  be  wholly  lost  to  the  said  E.  and  his  aforesaid  children, 
by  the  fraudulent  and  artful  contrivances  of  any  who  might  be 
disposed   to  take  the  advantage  of  or   deceive    him,  if  the 
said  property  were  suffered  to  remain  in  a  situation  in  which 
it  could  be  bound  or  affected  by  his  acts  or  contracts.     That 
the  said  E.,  himself,  was  finally  convinced  of  this,  and  being 
disposed  and  minded  to  provide  for  his  said  children,  as  ?lso 
to  secure  support  for  himself  in  after  life,  did,  on  or  about  the 
24th  February,  1840,  execute  and  acknowledge  in  due  form 
of  law,  a  certain  deed  or  indenture  in  writing,  whereby  he 
conveyed  to  the  said  Robert  W.  Brooke,  who  had  before  that 
time  intermarried  with  the  said  Mary  Jinn,  one  of  the  daugh- 


86  CASES  IN  THE  COURT  OF  APPEALS 

Brooke,  et  al.  vs.  Berry. — 1844. 


ters  of  the  said  £.,  all  his  property  of  every  description  what- 
soever, in  trust  for  the  use  of  his  said  children  ;  and  he  the  said 
E.,  to  be  well  supported  out  of  the  same  as  long  as  he  should 
live.  All  of  which  will  more  fully  and  at  large  appear,  refer- 
ence being  had  to  an  authenticated  copy  of  the  said  deed, 
which  is  herewith  filed,  marked  A.,  as  a  part  of  this  their  bill 
of  complaint ;  that  soon  after  the  execution  of  this  deed,  the 
said  R.  W.  B.,  the  trustee  therein  named,  and  the  husband  of 
the  said  M.  A.,  the  oldest  child  of  the  said  .E.,  called  on  the 
said  W.  F.  B.,  who,  on  his  having  been  appointed  by  the  said 
E.  as  his  agent,  aforesaid,  had  taken  possession  of,  and  gone 
to  reside  on  an  estate  of  the  said  E.,  composed  of  the  follow- 
ing parcels  of  land,  in  the  said  deed  specified,  to  wit:  "  Chil- 
leno  Castle"  and  "  Belfast,"  or,  "Addition  to  Charles'  Gift," 
and  "John's  Choice  Diminished"  and  continued  to  reside 
thereon,  at  that  time,  and  apprized  him  of  the  execution  of 
the  said  deed,  and  in  virtue  thereof,  demanded  of  him,  the  said 
W.  F.  B.,  a  surrender  of  the  possession  of  the  land  of  which 
he  had  thus  possessed  himself;  but  this  the  said  W.  F.  B. 
refused  to  do,  informing  the  said  R.  W.  that  he  claimed  a  title 
thereto  in  fee  simple,  by  virtue  of  a  deed  of  conveyance  before 
that  time  executed,  by  the  said  E.  to  him.  That  thereupon, 
the  said  R.  W.  communicated  this  to  the  said  E.,  who  posi- 
tively denied  all  knowledge  of  any  such  deed  ;  but,  upon  search 
being  made  among  the  land  record  books  of  said  county,  it 
was  discovered,  that  such  a  deed  had  in  point  of  fact  been 
executed  by  the  said  E.y  on  '.he  21st  June,  1839  ;  and  the  said 
Elisha  Berry  avers,  that  the  first  intimation  which  he  ever  had 
of  the  existence  of  this  last  mentioned  deed,  was  from  the 
said  R.  W.  in  manner  aforesaid  ;  that  he  never  contracted  or 
agreed  to  sell  or  convey,  any  land  to  the  said  W.  F.  B.;  never 
received  from  him  the  consideration  money,  in  the  said  deed 
expressed  and  mentioned,  or  any  other  valuable  consideration 
for  the  said  deed,  but  most  solemnly  asserts,  that  the  said  deed 
was  procured  from  him  by  the  said  W.  F.  B.,  by  fraud,  decep- 
tion, and  misrepresentation  ;  and,  as  well  as  the  said  E.  can 
recollect,  it  must  have  been  in  the  following  manner:  That 


OF  MARYLAND.  87 


Brooke,  et  al.  vs.  Berry. — 1844. 


about  the  time  the  said  deed  bears  date,  the  said  W.  F.  B. 
called  on  him,  the  said  E.,  when  the  latter  too  had  not 
recovered  from  the  effects  of  a  violent  attack  of  epilepsy 
which  he  bad  had  then  within  a  day  or  two  before,  and  assured 
him  that  it  was  indispensably  important,  and  for  the  interest  of 
him,  the  said  E.,  that  the  sum  of  fifteen  hundred,  or  two 
thousand  dollars,  should  be  raised  immediately,  for  the  use  and 
benefit  of  his  estates ;  that  he,  the  said  W.  F.  £.,  could  effect 
this  very  readily,  if  he,  the  said  E.,  would  execute  the  paper 
which  he,  the  said  W.  F.  B.  had  had  prepared,  or  would 
have  prepared  for  that  purpose.  That  if  he  would  do  so,  his 
property  would  be  relieved  of  some  difficulties,  and  that  the 
money  which  was  to  be  raised  on  the  paper,  which  he  the  said 
E.  was  required  to  sign,  could  be  speedily  returned  to  the 
lender,  when  the  said  paper  would  be  returned  to  him,  the  said 
W.  F.  B.,  who  would  certainly  destroy  or  cancel  it:  and  he, 
the  said  E.,  should  never  again  hear  of  it.  That  having  the 
most  unlimited  confidence  in  the  said  W.  F.  B.,  and  in  the 
truth  of  his  said  representation,  and  owing  to  the  highly 
fiduciary  relation  in  which  the  said  W.  F.  B.  at  that  time  stood 
to  him,  the  said  £.,  weak  and  feeble  as  he  then  was,  con- 
sented to  accompany  him  to  Upper  Marlborough,  for  the 
purpose  aforesaid,  which  he  could  only  accomplish,  being 
carried  thither  in  a  carriage ;  and  there,  under  the  circum- 
stances stated,  executed  a  paper  or  instrument  of  writing, 
which  he  now  believes  to  be  the  deed,  a  copy  of  which  is 
herein  before  referred  to,  as  exhibit  B.  The  said  E.  avers, 
that  the  said  deed  was  not  read  to  him,  or  by  him,  prior  to  the 
execution  thereof,  and  even  if  it  had  been  it  is  extremely 
doubtful,  whether  in  his  then  state  both  of  body  and  mind,  he 
should  have  been  able  to  comprehend  it,  and  that  he  executed 
it  under  a  belief,  that  it  was  such  a  paper  as  the  said  W.  F.  B. 
represented  it  to  be,  and  to  raise  money  for  his  use.  That 
although  the  land  mentioned  in  and  conveyed  by  this  deed,  is 
worth  a  much  greater  sum  than  the  consideration  money 
therein  expressed,  (four  thousand  dollars,)  the  said  W.  F.  B. 
still  is,  (without  the  aid  of  the  said  land,)  and  always  has 


88  CASES  IN  THE  COURT  O»-'  APPEALS 

Brooke,  et  al.  vs.  Berry. — 1844. 

been,  utterly  unable  to  pay  or  raise  so  large  a  sum  of  money ; 
that  he  was,  indeed,  at  the  time  of  the  execution  of  this  deed, 
in  very  indigent  circumstances,  and  without  even  any  employ- 
ment or  visible  means  of  support,  for  himself  and  family, 
except  what  he  might  derive  from  the  aforesaid  agency,  and 
the  property  of  the  said  J2.,  which,  in  virtue  thereof,  was  in 
his  hands  and  under  his  managrment.  That  the  said  deed, 
so  as  aforesaid  made  and  executed  by  the  said  £.,  to  the  said 
W.  F.  jB.,  being,  as  they  are  advised  and  insist  for  the  reasons 
stated,  fraudulent  and  utterly  void,  your  orators  have  by  the 
said  R.  W.,  as  their  trustee  aforesaid,  applied  to  the  said 
W.  F.  B.,  and  requested  him  to  deliver  up  and  convey  to  the 
said  R.  W.,  to  be  held  by  him  for  the  purposes  stated  in  the 
deed,  hereinbefore  first  mentioned,  and  referred  to  as  exhibit 
A,  the  land  embraced  in  the  said  deed,  from  the  said  E.  to 
to  the  said  W.  F.  B.  But  now,  so  it  is,  may  it  please  your 
honor,  that  the  said  W.  F.  B.  combining,  &c.,  and  contriving 
bow  to  wrong  and  injure  your  orators  in  the  premises,  he,  the 
said  W.,  absolutely  refuses  to  comply  with  the  reasonable 
requests  of  your  orators,  pretending  and  asserting,  that  the 
said  deed  executed  by  the  said  E.  to  him^  was  for  a  fair  bona 
Jide  and  full  consideration,  and  procured  by  no  undue  and 
fraudulent  means  on  his  part ;  whereas,  your  orators  charge, 
that  the  said  W.  F.  B.  well  knows,  that  the  same  was  pro- 
cured by  the  misrepresentation  and  deceit,  hereinbefore  stated, 
in  gross  violation  of  the  confidence  reposed  in  him  by  the  said 
£.,  and  without  the  payment  of  a  single  dollar  for  the  land 
therein  embraced;  all  which  actings,  doings,  refusals,  and 
pretences,  are  contrary,  &c. 

Prayer,  that  the  said  W.  F.  B.  may  answer  this  bill,  and  that 
the  said  deed  bearing  date  the  21st  June,  1839,  may  be  set 
aside  and  cancelled,  by  a  decree  of  this  court ;  and  that  an 
account  may  be  taken  of  the  rents,  issues  and  profits,  received 
by  the  said  W.  F.  .B.,  from  the  lands  embraced  in  the  said 
deed,  since  the  date  thereof,  and  that  he  may  be  decreed  to 
pay  the  same  to  the  said  R.  W.  5.,  as  trustee  aforesaid.  And 
that  your  orators  may  have  such  other  and  further  relief  in  the 


OF  MARYLAND.  89 


Brooke,  et  a!,  vs.  Berry. — 1844. 


premises,  as  the  nature  and  circumstances  of  this  case  may 
require,  and  to  your  honor  seem  meet,  and  for  subpoeiia,  &c. 

With  this  bill  the  complainant  filed  various  exhibits,  as 
follows  : 

A.  Indenture  dated  24th  February,  1840.     Elisha  Berry  to 
Robert  W.  Brooke,  for  "  Good  Luck,"  or  "  Springfield ;"  for 
"  Provincial"  "Enclosure,  or  Enclosures"  "Fife  Enlarged" 
"  Chilleno    Castle"   and    "  Belfast,  or  Addition  to  Charles' 
Gift,"  "  Centreville,"  together  with  all  his  slaves  that  I  have 
now  in  my  possession ;  all  his  household  and  kitchen  furni- 
ture, farming  utensils  and  plantation  stock  ;  "  all  his  interest 
in  the  estate  of  the  late  JVancy  Berry"  in  trust,  &c. 

B.  Indenture  of  21st  June,  1839.     Elisha  Berry  to  William. 
F.  Berry,  in  consideration  of  $4000;  for  "Chilleno   Castle," 
194   acres,    1    rood ;    "  Belfast,"   or  "  Addition  to  Charles' 
Gift,"  37  acres ;  John's  Choice  Diminished,"  1  If  acres :  in 
fee,  with  a  general  warranty. 

The  defendant  was  summoned,  and  appeared,  but  not 
answering  the  bill,  on  the  19th  July,  1841,  an  interlocutory 
decree  was  passed  against  him,  and  an  ex  parte  commission 
was  ordered  and  issued. 

At  the  same  term,  July  1841,  the  defendant  filed  his  peti- 
tion praying,  to  set  aside  the  interlocutory  decree,  and 
receive  his  answer;  which  was  ordered  on  the  2d  September, 
1841,  and  leave  given  to  the  defendant  to  file  his  answer. 

The  answer  was  then  filed,  and  alleged,  that  prior  to  the 
filing  of  the  bill  of  complaint,  a  bill  was  filed  in  the  High  Court 
of  Chancery,  by  or  in  the  name  of  Elisha  Berry,  one  of  the 
above  named  complainants  against  this  defendant,  which  was 
answered  by  the  defendant,  and  which  he  prays  may  Betaken 
and  considered  as  a  part  of  his  answer  to  this  bill  of  com- 
plaint, so  far  as  the  same  is  applicable  to  the  allegations 
therein  contained.  As  this  defendant's  answer  to  the  former 
bill,  filed  as  aforesaid,  in  the  name  of  E.  B.,  against  him, 
gives  a  full  and  detailed  account  of  the  appointment  of  this 
defendant,  as  the  agent  of  the  said  E.  B.,  and  of  the  manner 
12  v.2 


90  CASES  LN  THE  COURT  OK  APPEALS 


Brooke,  et  ul.  t«.  Berry. — 1844. 


in  which  said  agency  was  conducted  by  him  ;  and  the  state  of 
the  account  between  him  and  the  said  E.  B. ;  of  the  termina- 
tion of  said  agency,  this  defendant  refers  to  his  said  answer, 
as  his  answer  to  the  similar  allegations  in  this  bill  of  com- 
plaint. Further  answering,  this  defendant  says,  that  on  the 
9th  December,  1836,  he  purchased  of  the  complainant,  E.  5., 
a  tract  of  land  called  ''•Chillcno  Castle;"  also,  one  other 
parcel  of  land,  called  "  Belfast,"  or,  "Addition  to  Charles* 
Gift;"  and  also,  part  of  one  other  tract  of  land,  called 
"  John's  Choice  Diminished  ;"  and  on  the  same  day,  to  wit, 
the  9th  day  of  December,  1836,  the  said  E,  B.  executed  to 
this  defendant  a  bond  of  conveyance,  for  said  lands,  a  copy 
of  which  is  herewith  filed,  marked  exhibit,  No.  1  ;  and  is 
prayed,  &c.  That  this  defendant  agreed  to  pay  the  said 
E.  5.,  for  said  lands,  the  sum  of  $3700,  that  being  the  sum 
which  the  said  E.  B.  had  given  for  said  lands,  some  two  or 
three  years  prior  to  the  sale  to  this  defendant.  That  on  the 
5th  December,  1836,  being  four  days  prior  to  the  execution 
of  the  said  bond  of  conveyance,  and  the  time  at  which  this 
defendant  first  contracted  for  said  lands,  this  defendant  paid 
to  the  said  E.  B.,  the  sum  of  $2000,  in  part  payment  of  said 
lands ;  as  will  appear  by  a  copy  of  the  receipt  for  the  same 
from  the  said  E.  B.  to  this  defendant,  herewith  filed,  marked 
exhibit,  No.  2.  This  defendant  further  answering,  says,  that 
he  has  since  paid  the  balance  of  the  purchase  money  of  said 
lands,  in  the  manner  and  at  the  times  specified,  in  an  account 
herewith  filed,  marked  No.  3 ;  and  that  the  said  E.  J2.,  in 
accordance  with  his  bond  of  conveyance,  on  the  21st  June, 
1839,  executed  the  deed,  conveying  said  lands  to  the  defen- 
dant, of  which,  the  complainants'  exhibit  B,  is  admitted  to 
be  a  correct  copy.  And  this  defendant  here  expressly  alleges, 
that  the  said  account,  marked  No.  3,  exhibits  a  full,  just,  and 
fair  state  of  the  account,  between  him  and  the  said  E.  .B.,  that 
said  account  contains  all  the  credits,  to  which  the  said  E.  is 
in  any  manner  whatever  entitled  ;  and  that  the  advances  made 
by  this  defendant,  as  exhibited  by  said  account,  were  made 
by  this  defendant,  under,  and  by  virtue  of  an  understanding 


OF  MARYLAND.  91 


Brooke,  et  al.  vs.  Berry. — 1844. 


had  with  ihe  said  E.  .B.,  that  this  defendant  should  make  said 
advances  in  payment  of  the  balance  of  the  purchase  money 
of  said  lands.  Further  answering,  this  defendant  says,  that 
the  said  E\  B.  being  unable  to  procure  the  relinquishment  of 
dower  by  his  wife,  as  he  had  by  his  aforesaid  bond  of  convey- 
ance contracted  to  do,  did  on  the  21st  June,  1839,  the  same 
day  on  which  he  executed  said  deed,  execute  to  this  defendant 
a  bond,  conditioned  to  indemnify  this  defendant  from  all  claim 
of  dower  on  the  part  of  his  said  wife  ;  as  will  also  appear  by 
a  copy  of  said  bond,  herewith  filed,  marked  No.  4.  This 
defendant  further  answering,  says,  that  the  allegation  in  said 
bill  of  complaint,  that  the  said  E.  B,  was  induced  by  this 
defendant  to  execute  said  papers  improperly  or  fraudulently, 
and  when  the  said  E.  was  in  a  weak  and  feeble  state  of  health, 
and  incapable  of  judging  of  their  true  import  and  meaning,  is 
wholly  untrue.  This  defendant,  in  answer  to  said  allegations, 
says,  that  the  said  E.  had  not  been  sick  for  a  long  time  prior 
to  the  execution  of  said  papers,  and  that  the  said  E.  B.  never 
had  an  epileptic  fit,  nor  any  other  fit,  until  the  marriage  of  his 
daughter  with  the  complainant,  R.  W.  B.,  and  until  long 
after  the  execution  of  said  papers.  That  the  said  E.  B.  was, 
on  the  day  he  executed  said  papers,  in  good  health,  and  was 
through  the  whole  day,  entirely  sober,  and  free  from  the 
influence  of  liquor.  This  defendant  further  says,  that  the  said 
E.  B.  was,  when  sober,  fully  capable  of  guarding  his  own 
interest,  and  was  as  difficult  to  deal  with,  or  get  a  bargain  out 
of,  as  any  man  in  the  community.  This  defendant  further  says, 
that  the  sum  which  he  contracted  to  pay,  and  has  paid,  for 
said  land,  was  fully  the  value  of  the  said  land,  at  the  time 
this  defendant  contracted  to  buy  it ;  that  it  was  the  same  price 
which  had  been  given  for  said  lands  some  short  time  before 
by  the  said  E.  B.  This  defendant  further  says,  that  the  com- 
plainant E.  B.,  has,  since  the  filing  of  the  said  bill  of  com- 
plaint, departed  this  life,  having  previously,  in  due  form  of 
law,  executed  his  last  will  and  testament,  appointing  this 
defendant  his  sole  executor,  as  will  appear  by  a  certified  copy 
thereof,  herewith  filed,  marked  No.  5.  That  said  will  ha* 


92  CASES  IN  THE  COURT  OF  APPEALS 

Brooke,  et  al.  vs.  Berry. — 1844. 

been  admitted  to  probat,  by  the  Orphans'  Court  of  Prince 
George's  county.  It  will  thus  appear  to  your  honor,  that  the 
complainants  claiming  under  a  deed  from  the  said  E.  B., 
executed  without  any  valuable  consideration,  are  seeking  in  a 
court  of  equity  to  set  aside  a  deed  executed  by  the  said  E.  B. 
for  a  full  money  consideration. 

This  defendant  further  answering,  denies  all,  and  all  manner 
of  fraud,  deceit,  imposition,  or  undue  influence,  with  which 
he  stands  charged,  in  and  by  the  said  bill  of  complaint.  This 
respondent  further  says,  that  from  the  time  he  contracted  for 
said  lands,  as  herein  before  stated,  he  has  been  in  the  quiet, 
peaceable  possession  of  the  same,  &c. 

The  defendant  with  his  answer  filed  various  exhibits,  as 
follows,  viz : 

No.  1.  Bond  of  E.  B.  to  W.  F.  J5.,  dated  9th  December, 
1836,  to  convey  the  land  on  which  W.  F.  B.  then  resided, 
consisting  of  several  named  tracts. 

No.  2.  Receipt. 

"Received  5th  December,  1836,  of  William  F.  Berry, 
$2000,  for  the  property  he,  the  said  W.  F.  B.,  now  resides 
on,  with  appurtenances  thereunto,  which  money  is  depo- 
sited in  bank,  to  be  checked  for  by  the  said  W.  F.  B.,  and 
applied  to  the  payment  of  my  debts.  E.  BERRY." 

"Witness,  E.  D.  Ferguson." 

No.  3.  Account.     Dr.  E.  B.  to  W.  F.  B.  Cr. 

The  account  commenced  8th  January,  1839,  and  concluded 
20th  May,  1840  ;  including  in  its  debits  $175,  for  W.  F.  B's 
services  as  agent.  The  debits  amounted  to  $2289.68.  The 
credits,  $378.95,  for  August,  1839;  leaving  E.  B.  in  debt, 
$1910.13. 

No.  4.  E.  B's  bond  of  indemnity,  21st  June,  1839,  to 
W.  F.  B.,  against  the  dov/er  right  of  Deborah  Berry,  in 
lands  conveyed  by  deed  of  this  date :  penalty,  $5000. 

No.  5.  Will  of  E.  B.,  devising  to  W.  F.  B.t  farm  called 
"Springfield  ;"  500  acres;  various  negroes  and  farming  uten- 
sils ;  with  devises  to  other  children  ;  dated  July,  1843,  with 
probat. 


OF  MARYLAND.  93 


Brooke,  et  al.  vs.  Berry. — 1844. 


Then  followed  the  answer  in  chancery,  sworn  to  on  the 
14th  July,  1840,  referred  to  in  the  answer  in  this  cause,  with 
the  various  exhibits  originally  filed  therewith,  viz  : 

No.  1.  Sales  of  4  hhds.  of  tobacco,  24th  August,  1842,  to 
A.  C.  Casinove  fy  Co.,  by  E.  Berry.  Amount,  $158.37. 

No.  2.  Account.  Elisha  Perry  bought  of  Elishn  Berry, 
6th  April,  1836,  $158.98;  settled  by  various  credits  to  E.  P. 

No.  3.  Sales  of  tobacco  to  A.  C.  C.  #  Co.,  by  R.  Wright; 
$449.41.  6th  November,  1838. 

No.  4.  Same  as  previous  exhibit,  No.  1.  Bond  of  In- 
demnity. 

No.  5.  Indenture  of  21st  June,  1839.  E.  B.  to  W.  F.  B. : 
consideration,  *4000.  Conveying  various  tracts  of  land  in 
Prince  George's  county,  and  all  the  estate  of  E.  B.  therein,  in 
fee,  with  general  warranty.  Recorded  18th  July,  1839. 

No.  6.  Bond  of  indemnity  against  dower,  as  before  men- 
tioned. 

No.  7.  Articles  of  agreement,  under  seal  of  1st  January, 
1837.  Between  E.  B.  and  W.  F.  B.,  by  which  the  former 
agreed  to  furnish  the  latter,  with  certain  property,  viz:  eight 
slaves,  two  plough  horses,  two  oxen,  ploughs,  carts,  and  other 
plantation  utensils ;  all  which  is  to  remain  with  the  said  W. 
F.  B.  on  the  land  where  he  now  resides,  for,  and  durinp;  the 

w         -    *  O 

term  often  years,  and  pay  him  $150,  annually  ;  and  the  said 
W.  F.  B.  on  his  part,  agreed  to  pay  E.  B.,  the  one-half  of 
the  crops  made  by  him,  the  said  W.  F.  jB.,  for  and  during  the 
said  term,  after  deducting  the  expenses  of  making  the  said 
crops  ;  and  W.  F.  B.  also  agreed  to  superintend  and  look  after 
all  the  said  E.  JB's  business. 

No.  8.  Acknowledgment  of  E.  B.,  that  on  settlement  with 
W.  F.  B.,  8th  January,  1839,  he  owed  him  $440.32. 

No.  9.  Account.  Dr.  E.  B.  to  W.  F.  B.  Cr.  Debits 
between  8th  January,  1839,  (including  above  balance,}  and 
20th  May  1840,  of  cash  paid  to  various  persons  :  for  carriage 
horse,  harness,  bridge  tolls,  pork,  beef,  flour,  store  accounts, 
attorney's  fees,  and  for  services  as  agent,  from  1st  January, 
1839,  to  2nd  March,  1840,  in  all  $2889.08,  and  credits  for 


94  CASES  IN  THE  COURT  OF  APPEALS 

Brooke,  et  al.  ts.  Berry. — 1844. 


wheat  made  at  Springfield,  and  cash  received  for  rent  and 
judgments,  $378.95.  Balance  in  favor  of  W.  F.  B.,  $1910.13. 

The  complainants  filed,  a  general  replication  at  Septem- 
tember  term,  1841,  and  on  the  22nd  October,  1841,  a  com- 
mission to  lake  proof,  was  issued  by  consent. 

The  ex-parte  commission  issued  on  the  19lh  July,  1841, 
was  then  returned,  under  which,  various  witnesses  had  been 
examined.  That  commission  was  closed  on  the  30th  Sep- 
tember, 1841. 

Another  commission  was  issued  on  the  25th  October,  1841, 
which  was  closed  21st  February,  1843.  Under  these  com- 
missions a  great  variety  of  evidence,  documentary  and  other- 
wise, was  taken,  and  returned  into  the  court  of  chancery. 
This  is  sufficiently  adverted  to,  in  the  opinion  of  this  cour'.. 

On  the  15th  November,  1843,  the  death  of  the  complainant, 
Elisha  Berry,  was  suggested  on  the  record. 

The  complainants  excepted  to  the  admissibility  of  portions 
of  the  proof,  taken  under  the  commission,  which  issued  on  the 
25th  October,  1841  ;  and  which  was  returned  on  the  28th 
February,  1843. 

1st.  To  the  answer  of  Benjamin  Duvall  to  the  defendant's 
third  interrogatory  :  upon  the  ground,  that  evidence  of  the 
defendant's  character,  is  irrelevent  and  inadmissible. 

2nd.  To  the  answers  of  Enos  D.  Ferguson  and  others,  to 
the  same  interrogatory  :  upon  the  same  ground. 

3rd.  To  that  portion  of  the  answer  of  Thomas  G.  Pratt, 
to  the  defendant's  fourteenth  interrogatory  :  which  speaks  of 
the  belief  and  impression  of  the  witnesses. 

4th.  To  the  answer  of  Jesse  Talbot  to  the  defendant's 
eleventh  interrogatory  :  upon  the  ground,  that  the  declarations 
of  the  defendant  to  the  witness,  are  not  testimony  in  his  favor. 

5th.  To  the  admissibility  of  the  evidence  of  Thomas  F. 
Bowie.  1st.  Because  he  speaks  of  conversation  with  the 
defendant.  And  2nd.  Because  he  refers  to  the  contents  of 
paper  writings,  which  are  not  shown  to  be  out  of  the  reach  of 
the  defendant,  or  lost  or  destroyed. 


OF  MARYLAND.  95 


Brooke,  et  al.  vs.  Berry. — 1844. 


6th.  To  the  answers  of  all  the  witnesses  examined  on  the 
part  of  the  defendant :  because  the  interrogatories,  to  which 
those  answers  are  responses,  are  all  and  each  of  them,  lead- 
ing interrogatories. 

7th.  To  the  answer  of  Elisha  Perry  to  the  defendant's 
nineteenth  interrogatory:  upon  the  ground,  that  the  declara- 
tions of  Elisha  Berry,  and  more  particularly  his  declarations 
after  the  execution  of  the  deed  to  Robert  W.  Brooke,  are  not 
evidence  against  the  complainants.  And  they  also  except  to 
the  depositions  of  all  the  witnesses  of  the  same  character. 

8th.  To  the  answer  of  Enos  D.  Ferguson  to  the  defendant's 
tenth  interrogatory :  because  the  paper  therein  referred  to, 
was  not  produced,  or  its  absence  accounted  for. 

The  defendant  excepts  to  the  averments  and  allegations  in 
the  complainants  bill,  and  to  their  sufficiency. 

1.  That  there  is  no  averment  or  allegation  that  the  defen- 
dant committed  a  fraud  upon  his  principal  E.  J3.,  in  the  pur- 
chase of  the  land  in  controversy,  as  agent  or  trustee. 

2.  That  there  is  no  averment  or  allegation,  that  the  said 
purchase  of  the  land  in  controversy,  was  made  in  breach  and 
violation  of  the  said  defendant's  duty  #nd  relation  to  the  said 
Elisha,  as  agent  or  trustee. 

3.  That  there  is  no  averment  or  allegation,  that  the  said  pur- 
chase was  made  within  the  scope  of  the  defendant's  agency 
or  trusteeship,  or  in  the  exercise  of  the  power  delegated  to 
him  by  complainant,  E.  B. 

4.  That  there  is  no  averment  or  allegation  in  the  bill,  that 
the  said   defendant  was  authorised  to  sell  the  said  land  by 
the  complainant,  E.  B. 

The  defendant  also  excepts  to  all  proof  taken  by  the  com- 
plainants under  both  commissions  ;  because,  the  interrogato- 
ries, each  and  all  of  them,  are  leading  in  answer  to  which  the 
said  proof  is  taken. 

The  defendant,  also,  excepts  to  the  admissibility  of  all  the 
complainants'  proof,  taken  under  the  special  and  ex  parts. 
commission,  that  issued  in  this  cause. 


96  CASES  IN  THE  COURT  OK  AITKALS 

Brooke,  et  al.  vs.  Berry. — 1844. 

1st.  Because  all  the  interrogatories  propounded  1o  the 
witnesses,  were  leading  interrogatories,  particularly  the  2nd, 
3rd,  4th,  5th  and  9th  interrogatories,  and  the  proof  is  there- 
fore inadmissible. 

2nd.  Because  the  said  proof  was  obtained  in  reply  to  inter- 
rogatories, which  were  leading,  and  is  therefore  inadmissible. 

3rd.  Because  the  Chancellor  by  his  order,  passed  on  the 
2nd  September,  1841,  cancelled  and  sqt  aside  the  interlocu- 
tory order,  under  which  the  said  proof  was  taken. 

4th.  Because  all  of  said  proof  and  testimony  was  taken, 
without  any  notice  having  been  given  to  the  defendant,  or  to 
his  solicitors. 

On  the  27th  November,  1843,  the  Chancellor  (BLAND,) 
dismissed  the  bill  with  costs,  being  of  opinion,  that  there  was 
no  sufficient  evidence  of  the  incompetency  of  the  said  Elisha 
Berry  to  contract,  at  the  time  of  making  the  contract,  which 
this  suit  seeks  to  have  set  aside,  nor  is  there  any  sufficient 
proof  of  the  said  contract  having  been  obtained  by  any 
fraud  or  mistake. 

From  which  decree  the  complainants  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 

By  J.  JOHNSON,  for  the  appellants,  and 

By  0.  C.  MAGRUDER  and  PRATT,  for  the  appellees. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

We  do  not  think  that  the  exceptions  taken  by  the  defen- 
dant to  the  averments  in  the  bill  of  complaint  can  be  of  any 
avail  to  him;  regarding  the  bill  as  sufficiently  charging,  if 
established  by  proof,  that  the  defendant's  title  to  the  land  in 
controversy  was  obtained  by  fraud;  that  if  not  obtained  by 
fraud,  it  was  acquired  from  Elisha  Berry,  a  man  of  such  fee- 
ble intellect  as  to  be  incompetent  to  the  management  of  his 
own  business,  by  William  F.  Berry,  the  defendant,  his  agent 
for  the  transaction  of  all  his  business,  in  whom  he  reposed 
entire  confidence,  under  such  circumstances  of  abused  confi- 


OF  MARYLAND.  97 


Brooke,  et  al.  vs.  Berry. — 1844. 


fidence  or  practised  imposition,  or  under  terras  so  unjust  and 
unequal,  as  would  affix  to  it  the  seal  of  condemnation,  when 
brought  to  the  view  of  a  court  of  equity. 

Neither  can  the  defendant  be  benefitted  by  his  exceptions  to 
the  proof  taken  under  the  commissions,  issued  for  that  pur- 
pose, because  the  only  tendency  of  the  proof,  elicited  under 
those  portions  of  the  complainants'  interrogatories  which  are 
justly  obnoxious  to  the  exceptions  taken  to  them,  is  to  estab- 
lish facts  admitted  in  the  defendant's  answer,  or  satisfactorily 
proved  by  other  testimony  in  the  cause,  which  stands  exempt 
from  all  objection.  Nor  is  there  any  force  in  the  defendant's 
exception  to  all  the  testimony  returned  under  the  ex  parte  com- 
mission on  the  ground  that  it  was  vacated  and  set  aside  by 
the  Chancellor's  order  rescinding  the  interlocutory  decree  for 
the  purpose  of  letting  in  the  defendant's  answer.  The  third 
section  of  the  act  of  1820,  ch.  161,  expressly  providing  that 
"the  filing  of  such  answer  or  answers  shall  in  no  case  affect 
the  validity  of  any  commission  previously  issued  to  take  tes- 
timony, or  of  the  proceedings,  or  any  of  them,  under  such 
commission,  or  of  any  testimony  previously  taken  and  returned 
under  any  such  commission."  All  the  proof  under  the  ex  parte 
commission  was  taken  prior  to  the  rescission  of  the  interlocu- 
tory decree  on  which  it  issued,  and  its  efficacy  is  the  same, 
whether  previously,  or  subsequently  returned. 

There  is  no  ground  for  the  defendant's  exception  to  the  tes- 
timony under  the  ex  parte  commission,  that  it  was  taken  with- 
out any  notice  having  been  given  to  the  defendant  or  to  his 
solicitor.  No  such  notice  was  requisite.  The  defendant  having 
no  power  of  offering  testimony  before  the  commissioner,  or  of 
cross  examining  the  witnesses  produced  on  the  part  of  the 
complainant. 

The  exceptions  of  the  complainants  to  the  testimony,  on 
the  part  of  the  defendant,  offered  to  prove  the  good  character 
and  upright  conduct  of  William  F.  Berry,  we  think  were  well 
taken.  Such  evidence  being  inadmissible  in  this  cause.  As 
authority  for  which,  see  note  339  of  2  Cowen's  Phil,  on  Ev.  456. 
13  v.2 


98  CASES  IN  THE  COURT  OK  APPEALS 


Brooke,  ct  al.  r*.  Berry. — 1844. 


These  preliminary  questions  being  disposed  of,  we  are 
brought  to  the  consideration  of  the  real  merits  of  this  contro- 
versy, as  they  appear  upon  the  record  before  us.  The  allega- 
tion of  actual  fraud,  as  charged  in  the  bill,  has  not  been  proved, 
and  was  not  insisted  on  in  the  argument  for  the  appellants. 
But  it  is  contended  that  the  feebleness  of  the  intellect  of  Elisha 
Berry  ;  the  condition  in  which  he  stood  in  relation  to  the  ap- 
pellee, his  agent  for  the  transaction  of  all  his  business;  the 
inadequacy  of  the  price  alleged  to  have  been  paid  for  the  land 
conveyed,  and  all  the  circumstances  surrounding  the  transac- 
tion, are  of  such  a  character,  that  they  can  receive  no  counte- 
nance from  a  court  of  equity;  and  that  the  deed  complained 
of  ought  to  be  vacated.  And  in  this  view  of  the  case  we 
entirely  concur.  The  agency  of  William  F.  Berry  in  the 
transaction  of  all  the  business  of  Elisha  Berry  is  admitted  by 
the  answer  and  proved  by  not  less  than  eight  witnesses.  As 
to  the  feebleness  of  Elisha  Berry^s  intellect  and  his  incapacity 
to  transact  his  own  business,  there  is  a  great  contrariety  of 
evidence,  twelve  witnesses  having  deposed  to  the  existence 
of  such  feebleness  and  incapacity  and  nine  against  it.  But 
the  opinion  of  the  twelve  are  corroborated  by  the  declarations 
of  William  F.  Berry  himself,  who,  at  different  times,  to  three 
different  individuals,  whose  testimony  is  before  us,  and  to  one 
of  them  on  more  occasions  than  one,  stated  that  his  brother 
Elisha  was  incapable  of  transacting  his  own  business.  Look- 
ing then  to  this  testimony  only,  and  the  number  of  witnesses 
testifying  for  each  party  upon  the  simple  question  of  mental 
capacity,  there  would  be  perhaps  a  sufficiency  of  evidence, 
not  only  to  control  the  positive  denials  in  the  answer,  but  also 
to  entitle  the  appellants-to  the  relief  which  they  have  sought. 
And  when  we  connect  this  testimony  with  the  relation  in  which 
the  appellee  stood  to  Elisha  Berry,  as  his  agent  for  the  trans- 
action of  all  his  business,  and  with  the  fact  that  the  land  has 
been  purchased  greatly  below  its  value,  we  cannot  see  how, 
consistently  with  the  well  established  principles  of  equity,  we 
can  withhold  relief  from  the  appellants.  By  averaging  the 
valuations  fixed,  on  the  land  in  question,  by  the  eighteen  wit- 


OF  MARYLAND.  99 


Brooke,  et  al.  vs.  Berry. — 1844. 


nesses  who  have  deposed  as  to  its  value,  instead  of  being  sold, 
according  to  the  alleged  contract,  for  three  thousand  seven 
hundred  dollars,  six  thousand  five  hundred  and  twenty  dollars 
ought  to  have  been  paid  for  it.  And  this  estimate  of  its  value 
is  strongly  sustained  by  the  nine  witnesses  who  were  examined 
as  to  what  was  a  fair  yearly  rent  for  the  land.  By  an  average 
of  their  testimony  the  yearly  rent  would  be  $347.21 ;  the  cap- 
ital to  raise  which,  by  an  investment  in  land  producing  an  in- 
terest of  five  per  cent,  (which  is  deemed  a  remunerating  income 
from  investments  in  land  in  the  country,)  would  be  $6,944. 
And  fixing  the  rate  of  interest  to  be  derived  from  such  an  in- 
vestment at  six  per  cent,  per  annum,  would  be  $5,787. 

The  guards  and  limitations  which  a  system  of  enlightened 
jurisprudence  has  cast  around  the  dealings  of  principal  and 
agent,  have  been  so  accurately  defined  by  Justice  Story,  in  his 
1st  vol.  of  Commentaries  on  Equity,  310,  section  315,  that  we 
deem  it,  in  this  case,  unnecessary  to  cite  any  other  authority 
on  the  subject.  After  treating  in  the  preceding  section  of  the 
connexion  between  guardian  and  ward,  trustee  and  cestui  que 
trust,  &c.,  and  of  what  transactions  between  them  shall  stand: 
In  the  315  section,  in  speaking  of  the  relation  of  principal  and 
agent,  he  says:  "this  is  affected  by  the  same  considerations 
as  the  preceding,  founded  upon  the  same  enlightened  public 
policy.  In  all  cases  of  this  sort,  the  principal  contracts  for 
the  aid  and  benefit  of  the  skill  and  judgment  of  the  agent, 
and  the  habitual  confidence  reposed  in  the  latter,  makes  all  his 
acts  and  statements  possess  a  commanding  influence  over  the 
former.  Indeed,  in  such  cases,  the  agent  too  often  so  entirely 
misleads  the  judgment  of  his  principal,  that,  while  he  is  seek- 
ing his  own  peculiar  advantage,  he  seems,  too  often,  but  con- 
sulting the  advantage  and  interests  of  his  principal."  "It  is, 
therefore,  for  the  common  security  of  all  mankind,  that  gifts 
procured  by  agents,  and  purchases  made  by  them  from  their 
principals,  should  be  scrutinized  with  a  close  and  vigilant  sus- 
picion. And  indeed  considering  the  abuses  which  may  attend 
any  dealings  of  this  sort  between  principals  and  agents,  a 
doubt  has  been  expressed,  whether  it  would  not  have  been 


100  CASES  IN  THE  COURT  OF  APPEALS 

Brooke,  et  al.  vs.  Berry. — 1844. 

wiser  for  the  law  in  all  cases  to  have  prohibited  them,  since 
there  must  always  be  a  conflict  between  duty  and  interest  on 
such  occasions.  Be  this  as  it  may,  it  is  very  certain  that 
agents  are  not  permitted"  "to  deal  validly  with  their  principals 
in  any  cases,  except  where  there  is  the  most  entire  good  faith, 
and  a  full  disclosure  of  all  facts  and  circumstances,  and  an 
absence  of  all  undue  influence,  advantage,  or  imposition. >} 
If  these  principles  of  Justice  Story  be  correct  when  applied 
to  dealings  between  principal  and  agent,  where  the  mind  of 
the  principal  is  exempt  from  all  imputation  of  imbecility,  what 
must  be  their  influence  when  applied  to  a  case  like  that,  now 
before  this  court. 

But  in  arriving  at  the  conclusion  we  have  formed  in  refer- 
ence to  the  case  before  us,  we  are  not  compelled  to  rely  solely 
on  the  oral  testimony  in  the  cause  to  convince  us  of  the  inca- 
pacity of  Elisha  Berry  to  transact  his  own  business;  of  the 
excess  of  confidence  reposed  by  him  in  the  appellee,  and  the 
undue  influence  exerted  over  him  by  the  latter.  The  acts  of 
Elisha  Berry  and  William  F.  Berry,  as  shown  by  the  docu- 
mentary evidence  and  oral  testimony  in  relation  thereto,  irre- 
sistibly impel  us  to  the  opinion  we  have  before  expressed. 
Elisha  Berry,  it  appears,  has  been  in  a  state  of  wardship  from 
the  time  of  marriage  till  his  death.  If  possessed  of  sufficient 
intellect  to  transact  his  own  concerns,  why  should  this  have 
been?  In  1829,  William  F.  Berry  for  the  first  time  became 
his  agent  for  the  transaction  of  all  his  business,  and  so  con- 
tinued until  1833,  when  he  was  superseded  by  Richard  H. 
Marshall  being  appointed  his  successor.  The  first  act  of  the 
administration  of  William  F.  Berry,  which  has  been  brought 
to  our  notice,  is  the  obtaining  from  Elisha  Berry  the  deed  of  the 
21st  of  June  1831,  for  Springfield  or  Good  Luck,  containing 
upwards  of  five  hundred  acres  of  land  (being  his  dwelling  plan- 
tation) and  ten  negroes,  all  his  household  and  kitchen  furniture, 
plantation  utensils  and  all  the  stock  belonging  to  Elisha  Berry, 
with  a  general  warranty.  Such  a  deed,  for  a  merely  nominal 
consideration,  from  a  farmer,  having  a  wife  and  children  de- 
pendent on  him  for  support,  without  any  explanatory  circum- 


OF  MARYLAND.  101 


Brooke,  et  al.  vs.  Berry. — 1844. 


stances  to  sustain  it,  would  bear,  upon  its  face,  internal  evidence 
of  mental  imbecility  in  the  grantor  almost  amounting  to  idiocy 
or  lunacy;  or  that  he  had  been  the  victim  of  undue  influence; 
or  been  so  overreached  or  imposed  upon  that  the  interposition 
of  a  court  of  equity,  for  his  relief,  would  follow  as  a  matter  of 
course.  And  the  presumptions  against  this  deed  are  strongly 
fortified  by  the  inconsistent  conduct  of  the  appellee,  who,  when 
superseded  in  his  agency  by  the  appointment  of  Richard  H. 
Marshall  in  1833  to  a  bill  filed  against  him,  in  Prince  George's 
county  court,  by  Elisha  Berry  and  Richard  H.  Marshall  to  set 
aside  the  said  conveyance,  though  denying  almost  every  alle- 
gation in  the  bill,  insisted  on  the  said  conveyance  as  a  fair  and 
bona  fide  deed  of  gift  from  his  brother  Elisha  Berry,  volunta- 
rily and  freely  made,  and  at  his  own  instance  and  suggestion. 
Whilst  to  his  solicitor  he  stated,  notwithstanding  the  imputa- 
tions cast  upon  him  by  the  bill,  that  he  had  no  design  to  keep 
the  property  against  Elisha  Berry's  children,  but  only  wished 
to  prevent  Richard  H.  Marshall  from  having  any  control  over 
it.  And  yet,  instead  of  going  to  his  brother  and  having  a  full 
explanation  upon  the  subject,  and  re-conveying  the  property 
to  him,  or  some  other  person,  other  than  the  said  Richard  H. 
Marshall,  we  find  the  said  William  F.  Berry,  a  few  months 
after  the  filing  of  his  answer,  voluntarily  reconveying  the  whole 
of  the  property,  both  real  and  personal,  mentioned  in  the  said 
alleged  deed  of  gift,  to  Richard  H.  Marshall,  in  trust  for  Elisha 
Berry  and  his  heirs.  If  this  deed  to  William  F.  Berry  was, 
as  stated  in  his  answer,  a  fair  and  bona  fide  deed  of  gift,  made 
at  the  instance  and  suggestion  of  Elisha  Berry,  why  was  the 
property  given  by  it  suffered  to  remain  in  the  hands  of  the 
donor  from  the  date  of  the  deed  in  1831,  till  the  filing  of  the 
bill  for  its  recovery  in  1833,  without  the  slightest  evidence, 
as  far  as  the  record  discloses,  of  any  demand  of  possession  or 
assertion  of  title  on  the  part  of  William  F.  Berry  (then  very 
poor  according  to  all  the  proof,)  to  any  portion  of  the  property 
conveyed  to  him.  As  fraud  is  expressly  denied  by  his  answer, 
we  can  only  account  for  his  conduct  by  supposing  him  con- 
scious of  the  mental  imbecility  of  his  brother,  and  of  the  in- 
validity of  the  conveyance  executed  in  his  favor. 


102  CASES  IN  THE  COURT  OF  APPEALS 

Brooke,  et  al.  vs.  Berry. — 1844. 

In  1836,  Richard  H.  Marshall  having  been  dismissed  from 
the  service  of  Elisha  Berry ,  he  restored  to  his  favor  and  confi- 
dence William  F.  Berry,  and  clothed  him  with  his  former 
plenary  powers,  as  agent :  who,  as  stated  in  his  answer  in  the 
case  now  under  consideration,  purchased  of  his  brother,  in  the 
beginning  of  the  month  of  December  of  that  year,  two  hundred 
and  forty-two  and  a  half  acres  of  land,  as  is  alleged,  at  its  full 
value  ;  that  is,  $3,700.  For  which,  however,  Elisha  Berry 
had  three  years  before  paid  $3,750,  and  had  been  offered  for  it 
by  Benjamin  Duvall,  the  person  of  whom,  by  his  agent 
Richard  H.  Marshall,  he  had  previously  purchased  it,  the  sum 
of  $6,112.50,  which  offer  had  been  rejected  by  Elisha  Berry. 
Connecting  this  testimony  of  Benjamin  Duvall,  the  appellee's 
witness,  with  the  average  value  of  the  lands,  as  derived  from 
all  the  witnesses  sworn  on  that  subject,  it  can  hardly  be 
insisted,  that  the  appellee  has  not,  in  a  contract  with  his  prin- 
cipal, obtained  a  conveyance  of  his  lands  at  a  price  greatly 
below  their  value.  Which  of  itself  would  induce  a  court  of 
equity  (apart  from  the  mental  incapacity  of  the  principal,)  to 
set  aside  the  contract,  unless  it  were  shown  by  competent  tes- 
timony, that  the  contract  was  entered  into  in  away  and  under 
circumstances,  which  made  it  apparent,  that  there  had  been  no 
abuse  of  confidence;  no  undue  influence;  no  imposition  or 
material  concealments  practised  by  the  agent  upon  the  princi- 
pal, which  could  cast  a  shade  of  doubt  as  to  the  fairness  and 
honesty  of  the  transaction.  In  this  case,  the  contract  is 
supported  by  no  such  conservative  testimony.  And,  cast  in 
the  scale  of  objections  to  it,  the  reasonable  doubt,  if  not  the 
established  fact,  of  the  great  mental  imbecility  of  Elisha 
Berry,  and  this  contract  of  1836,  cannot  stand  the  scrutiny  of 
a  court  of  equity. 

If,  as  is  alleged  in  the  answer  of  the  appellee,  the  land  was 
designed  to  be  sold  to  him  for  its  full  value,  how  can  we, 
consistently  with  Elisha  Perry's  mental  capacity  for  the  trans- 
action of  business,  his  exemption  from  undue  influence  or 
imposition,  account  for  his  selling  his  land  for  $3,700,  to  his 
agent,  when  be  had  been  offered  for  it  $6,112.50,  by  another 


OF  MARYLAND.  103 


Brooke,  et  al.  vs.  Berry. — 1844. 


person  ;  and  there  is  nothing  in  the  record  to  induce  a  belief, 
that  he  could  not  still  have  obtained  it?  But  if  all  other 
testimony  were  wanting  on  the  subject,  it  is  difficult  to  con- 
ceive how  the  written  instruments  exhibited  by  the  appellee 
himself,  to  establish  the  contract  of  1836,  can  be  read  without 
exciting  the  strongest  suspicions,  if  not  a  confident  belief,  in 
the  mental  incapacity  of  Elisha  Berry  for  the  transaction  of  his 
own  business ;  or  that  this  contract  of  1836,  was  obtained 
from  him  by  an  abuse  of  confidence,  undue  influence,  or  some 
objectionable  means.  The  first  of  these  instruments  is  Elisha 
Berry's  receipt  to  William  F.  Berry,  for  $2,000  in  advance, 
for  the  lands  now  in  dispute,  which  money,  the  receipt  states, 
is  deposited  in  bank,  to  be  checked  out  by  William  F.  Berry, 
in  payment  of  the  debts  of  Elisha  Berry.  This  sum  of  $2,000, 
one  of  the  witnesses  proves,  was,  about  the  1st  of  December, 
1836,  deposited  in  his  own  name  by  William  F.  Berry  in  the 
Bank  of  the  Metropolis.  If  Elisha  Berry  had  been  capable 
of  transacting  his  own  business,  would  he  have  been  content 
that  the  receipt  which  he  had  signed,  should  be  the  only 
receipt  signed  in  relation  to  this  $2,000?  Would  he  not  have 
taken  some  receipt  or  written  evidence  from  William  F.  Berry, 
that  $2,000  had  been  placed  in  his  hands,  to  be  applied  to  the 
payment  of  Elisha  Berry^s  debts.  Suppose  William  F.  Berry 
had  been  unfaithful  to  his  trust,  and  applied  the  $2,000  to  the 
payment  of  his  own  debts  ;  or  had  denied  its  receipt,  and 
retused  to  account  for  it  in  any  way,  what  written  evidence 
had  Elisha  Berry  to  show  the  accountability  of  his  agent  ? 
None.  Would  a  man  of  capacity  to  transact  his  own  business 
thus  deal  with  an  agent,  when  placing  thousands  in  his  hands? 
If  he  would,  it  shows  that  he  reposed  a  blind  confidence  in 
his  agent,  which  should  taint  with  suspicion  all  contracts, 
between  them,  for  the  purchase  of  the  principal's  property. 
The  contracting  parties  do  not  meet  on  equal  terms.  Nor 
would  an  agent,  discharging  his  duties  with  fidelity  to  his 
principal,  and  protecting,  as  he  ought  to  do,  the  interests  of 
his  principal  with  the  same  care  and  circumspection  that  he 
would  his  own,  thus  deal  with  him. 


104  CASES  IN  THE  COURT  OF  APPEALS 

Brooke,  et  al.  »*.  Berry. — 1844. 

The  next  written  instrument  relied  on  by  the  appellee, 
as  showing  the  fairness  of  his  title  under  the  purchase  from 
Elisha  Berry,  is  the  bond  of  conveyance  of  Elisha  Berry, 
bearing  date  four  days  after  his  receipt  for  the  $2,000,  viz  : 
on  the  9th  day  of  December,  1836.  It  is  not  pretended,  on 
the  contrary,  the  answer  of  the  appellee  disproves  it,  that  when 
the  bond  of  conveyance  was  executed,  there  had  been  any 
other  payment  made  on  account  of  the  land,  except  the  two 
thousand  dollars.  And  yet,  by  the  explicit  terms  of  this  bond 
of  conveyance,  without  any  condition  as  to  the  payment  of  the 
balance  of  the  purchase  money,  or  any  thing  else;  and  without 
the  said  Elisha  Berry1  s  receiving  any  bond,  note,  or  written 
acknowledgment  for  such  balance,  he  is  bound  in  a  penalty  oi 
ten  thousand  dollars,  on  or  before  the  first  day  of  November 
next,  thereafter,  to  make  a  conveyance  in  fee  simple,  clear  of 
all  incumbrances,  to  William  F.  Berry.  This  bond  of  con- 
veyance is  virtually  an  acknowledgement  that  the  whole  pur- 
chase money  had  been  paid  ;  and  in  case  of  the  death  or 
infidelity  of  the  appellee,  Elisha  Berry,  as  far  as  the  record 
informs  us,  had  not  the  semblance  of  evidence,  on  which  he 
could  rely,  for  the  recovery  of  that  portion  of  the  purchase 
money  remaining  unpaid.  Can  it  be  believed,  that  a  man 
capable  of  transacting  his  own  business,  would  have  placed 
himself  in  such  a  situation  ?  It  is  no  excuse  for  it  to  say, 
that  this  money  was  thus  left  in  the  hands  of  the  agent,  to  be 
appropriated  to  the  use  of  the  principal,  as  occasion  might 
require.  No  principal  who  knew  what  was  due  to  himself, 
nor  agent,  who  looked  to  the  interest  of  his  principal,  would 
have  assented  to  such  an  arrangement.  It  evinces  a  degree 
of  mental  incapacity,  or  unbounded  confidence  on  the  part  of 
the  principal,  or  undue  influence  by  the  agent,  that  prima 
facie,  should  infect  and  invalidate  all  contracts  and  transac- 
tions between  them.  There  are  other  facts  in  reference  to 
the  written  instruments,  exhibited  by  the  appellee,  which,  if 
•weighed  separately,  would  be  esteemed  of  little  import,  but 
when  viewed  collectively  and  in  connexion  with  the  testi- 
mony and  other  facts  of  the  case,  tend  to  strengthen  the  views 


OF  MARYLAND.  105 


Brooke,  et  al.  vs.  Berry. — 1844. 


hereinbefore  expressed.  The  deed  of  1831,  though  asserted 
to  be  a  voluntary  deed  of  gift,  contains  a  general  warranty  ; 
which  is  rather  an  unusual  ingredient  in  such  a  conveyance. 
The  bond  of  conveyance  makes  the  penalty  for  its  breach  ten 
thousand  dollars ;  and  this  bond  is  retained  by  the  obligee, 
instead  of  being  delivered  up  to  the  obligor,  at  the  time  of  his 
executing  the  deed  of  conveyance.  This  deed  states  the  pur- 
chase money  paid  for  the  land  to  be  $4,000,  instead  of  $3,700, 
as  shown  by  the  answer,  and  contains  a  covenant  of  general 
warranty,  whilst  at  the  time  of  its  execution,  Elisha  Berry  is 
made  to  execute  a  bond  of  indemnity,  against  the  claim  of 
dower,  in  the  penalty  of  five  thousand  dollars.  In  these  trans- 
actions between  William  F.  Berry  and  Elisha  Berry,  it  is 
impossible  not  to  see,  that  whilst  the  rights  and  interests  of 
the  former  were  provided  for,  and  protected  by  every  guard 
which  could  be  thrown  around  them,  the  rights  and  interests  of 
the  latter,  were  disregarded  and  abandoned,  as  it  were,  to  take 
care  of  themselves. 

In  pursuance  of  the  foregoing  views,  this  court  will  sign 
a  decree  reversing  with  costs  the  decree  of  the  Chancery 
Court ;  and  remanding  this  cause  thereto,  that  a  decree  may 
be  there  passed  for  the  annulling  and  cancelling  the  said 
bond  of  conveyance,  and  bond  of  indemnity,  and  the  two 
deeds  of  conveyance,  from  the  said  Elis/ia  Berry  to  the  said 
William  F.  Berry,  which  said  deeds  bear  date  on  the  21st 
day  of  June,  in  the  year  1839 ;  and  for  the  sale  of  the  lands 
and  premises  therein  mentioned ;  and  for  an  account  between 
the  appellants  and  the  appellee,  in  which  the  appellee  shall 
be  charged  with  the  rents  and  profits  of  the  said  lands, 
and  be  credited  for  his  improvements  thereon,  during  the  time 
he  shall  have  held  and  enjoyed  the  said  lands  under  his 
alleged  purchase  thereof;  and  shall  be  credited  with  all  the 
sums  of  money  by  him  bona  fide  paid,  on  account  of  the  said 
Elisha  Berry,  or  which  shall  be  justly  due  and  owing  from 
him  to  the  said  William  F.  Berry.  The  sum  of  $2,000  depo- 
sited in  the  Bank  of  the  Metropolis,  and  for  which  Elisha 
Berry  gave  a  receipt,  is  not  to  be  credited  to  him,  the  said 
14  v.2 


106  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt.— 1844. 


William  F.  Berry,  until  additional  proof  is  offered,  to  shew 
that  the  same  has  been  properly  applied  in  discharge  of  the 
liabilities  of  the  said  Elisha  Berry. 

And  this  cause  is  furthermore  remanded,  that  the  chancellor 
may  pass  such  further  orders  and  decrees  therein,  as  the 
nature  of  the  case  may  require.  The  items  in  exhibit,  No  3, 
of  defendant,  to  be  deemed  by  the  auditor  as  established, 
except  the  first  of  said  items,  of  $440.32,  the  balance  on 
settlement. 

DECREE  REVERSED,  AND  CAUSE  REMANDED, 


JOSEPH  I.  JONES  vs.  TRUEMAN  BELT. — December  1844. 

Where  a  complainant  alleged  the  existence  of  a  contract  with  the  defendant, 
accompanied  with  collateral  circumstances,  and  called  upon  him  not  to 
state  what  the  contract  was,  but  to  admit  or  deny  the  existence  of  the 
agreement  and  circumstances  set  torth  ;  and  the  defendant,  in  his  answer, 
averred  another  agreement  between  him  and  the  complainant,  and  denied 
the  collateral  circumstances  :  the  statement  of  the  agreement  by  the  defen- 
dant in  such  case  is  not  simply  responsive  to  the  contract  ho  was  called  on 
to  admit  or  deny.  It  is  not  such  a  denial  as  requires  two  witnesses,  or  one 
with  concurring  circumstances  to  disprove  it ;  nor  in  this  case  was  it  ne- 
cessary to  disprove  the  denial  of  the  collateral  circumstances  by  the  same 
amount  of  proof. 

It  is  a  general  rule,  that  a  positive  denial,  in  an  answer  of  the  contract  stated 
in  the  bill,  should  be  contradicted  or  outweighed  by  the  proof  of  two  wit- 
nesses, or  one  witness  and  pregnant  circumstances;  but  the  principle  on 
which  it  is  predicated  is  not  one  of  universal  application. 
As  where  two  papers  .vere  exhibited  in  the  cause  ;  admitted  in  the  defendant's 
answer,  and  declared  by  the  court  to  be  the  agreement  of  the  parties,  they 
are  sufficient  to  control  the  answer  denying  the  agreement,  without  the  aid 
of  any  oral  testimony  in  their  support. 

The  cases  to  which  the  rule  was  introduced  to  apply,  must  be  those  in  which 
the  facts  denied  depended  on  oral  testimony;  or  oral  and  circumstantial 
evidence ;  not  where  they  were  conclusively  proved  by  the  production  of 
the  written  contract  of  the  parties. 

Neither  are  the  exceptions  to  the  rule  confined  to  cases,  where  the  contract 
denied,  has  been  formally  signed  and  executed  ;  as  where  a  verbal  contract 
is  made,  to  which  no  witness  could  testify,  and  a  complainant,  charging 
and  seeking  its  performance,  were  to  exhibit  with  his  bill  various  letters 
written  by  the  defendant  to  third  parties,  stating  the  contract,  all  which 


OF  MARYLAND.  107 


Jones  vs.  Belt.— 1844. 


letters,  the  answer  denying  the  contract,  admitted  to  be  genuine ;  this 
would  dispense  with  the  general  rule  in  question, 

A  defendant  cannot  exempt  himself  from  the  obligation  to  make  a  convey- 
ance which  he  stipulated  to  make,  on  the  ground  that  he  has  not  the  legal 
title. 

A  vendee,  against  whom  a  decree  for  specific  performance  of  a  contract  of 
purchase  is  sought,  may  object  the  want  of  title  in  his  vendor,  as  insupera- 
ble in  ordinary  cases. 

Ordinarily  Chancery  will  not  compel  a  purchaser  to  pay  the  purchase  money 
and  accept  a  defective  title.  But  a  vendor  has  no  interest  in  setting  up 
his  own  want  of  title. 

A  decree  which  refers  to  the  bill  for  a  description  of  the  lands  on  which  it  is 
intended  to  operate,  is  not  vague  and  uncertain  in  that  respect. 

This  court,  in  affirming  the  decree  of  the  Court  of  Chancery,  will  make  such 
appropriate  additions  to  its  terms,  as  may  be  necessary  to  secure  to  both 
parties  the  benefits,  advantages  and  prospective  rights  for  which  they  mu- 
tually stipulate,  in  relation  to  which  the  decree  appealed  from  was  silent, 
or  not  sufficiently  precise. 

APPEAL  from  the  Court  of  Chancery. 

The  bill  in  this  cause,  which  was  filed  on  the  28th  Novem- 
ber 1838,  by  the  appellee,  alleged,  that  he  is  the  owner  in  fee 
simple  of  a  tract  of  land  situated  at  the  intersection  of  the 
Washington  Branch  of  the  Baltimore  and  Ohio  Rail  Road, 
and  the  turnpike  road  between  Baltimore  and.  Washington,  at 
a  place  called  Beltsville;  that  upon  the  said  tract  of  land  he  has 
a  house  and  improvements,  occupied  and  used  as  a  tavern 
stand,  the  value  of  which  mainly  consists  in  its  being  a  stop- 
ping and  watering  place  of  the  trains  of  cars  passing  on  the 
rail  road  between  B.  and  W. ;  that  before  your  orator  erected 
his  present  improvements  on  the  said  tract  of  land,  he  enquired 
of  and  ascertained  from  the  B.  and  0.  R.  R,  Company,  that 
they  would  make  the  said  intersection  a  stopping  and  water- 
ing place,  provided  a  supply  of  water  could  be  obtained  in 
the  vicinity,  sufficient  to  fill  the  tank  or  reservoir  that  it  would 
be  necessary  for  the  said  company  to  erect,  for  the  use  of  the 
engines,  drawing  trains  on  the  said  branch  road.  He  being 
interested  in  the  matter,  made  enquiry  at  once,  and  aided  in 
his  examination  by  the  officers  of  said  company,  ascertained 
that  a  supply  of  water  could  be  obtained  in  requisite  abun- 


108 


Jones  vs.  Belt.— 1844. 


dance  from  certain  springs  on  the  land  belonging  to  a  certain 
Joseph  J.  Jones.  That  the  place  on  said  land  where  said 
springs  were  found,  presented  at  the  time  no  appearance  of 
an  open  and  running  spring,  available  in  its  then  condition,  for 
useful  purposes ;  but  was  a  damp,  wet  and  sobby  piece  of 
ground,  indicating  the  existence  of  springs  of  water,  which 
might  be  made  availableby  digging  down,  walling  a  reser- 
voir, and  collecting  the  small  streams  of  water  into  one 
head ;  the  evidence  of  the  supply  of  water  being  satisfacto- 
rily ascertained,  application  was  made  to  the  said  Jones,  for 
permission  to  collect  the  springs  and  conduct  them  by  suita- 
ble pipes  to  the  intersection  of  the  two  roads  aforesaid,  there 
to  furnish  a  supply  of  water  to  the  tank  or  water  station  pro- 
posed to  be  built.  That  the  said  Jones  at  once  assented  to 
the  use  of  the  said  springs  of  water,  with  the  understanding, 
that  when  the  said  springs  were  collected  into  a  common  reser- 
voir, and  the  same  walled  up,  one  half  of  said  reservoir  should 
be  left  open  for  the  use  of  said  Jones,  and  upon  condition  that 
your  orator  would  agree  to  indemnify  the  said  Jones  for  all 
damages  that  he  might  sustain  in  the  opening  of  the  ground, 
for  the  purpose  of  laying  down  pipes  to  conduct  the  water 
from  the  spring  to  the  water  station  aforesaid,  the  said  Jones 
requiring  no  other  compensation  for  the  use  of  the  springs  in 
their  then  condition,  than  the  use  of  one  half  of  the  spring 
when  it  should,  by  digging  and  walling,  as  aforesaid,  be  made 
available  for  useful  purposes  ;  and  the  agreement,  aforesaid, 
of  your  orator,  to  indemnify  the  said  Jones  for  damages  that 
he  might  sustain  in  laying  down  the  pipes  aforesaid.  That  the 
said  R.  R.  Co.  being  unwilling  to  incur  the  expense  of  erect- 
ing the  water  station  necessary  to  receive  the  water  from 
the  spring,  without  an  assurance  that  they  should  have  the 
use  of  the  water,  and  being  unwilling  to  meddle  with  the 
springs  without  the  consent  of  the  proprietor  of  the  land, 
required  that  your  orator  should  obtain  from  the  said  Jones  a 
binding  evidence  of  his  assent.  That  your  orator  accordingly 
applied  to  the  said  /.,  for  a  deed  of  conveyance  of  the  said 
springs,  with  the  rights  necessary  to  the  use  of  them  for  the 


OF  MARYLAND.  109 


Jones  vs.  Belt.— 1844. 


purpose  aforesaid  ;  that  the  said  /.  made  no  objection  to  the 
execution  of  such  an  instrument,  but  alleged  that  he  had 
recently  purchased  the  land,  and  had  himself,  as  yet,  no  deed 
for  it,  but  that  as  soon  as  he  obtained  a  deed,  he  would  exe- 
cute such  an  instrument  as  was  requested  by  your  orator,  and 
required  by  the  said  R.  R.  Co. ;  and  the  said  J.  accordingly 
addressed  a  letter  to  the  said  R.  R.  Co.,  in  which  he  bound 
himself  to  execute  to  your  orator  a  proper  conveyance  of  the 
said  springs,  and  the  rights  appendant  to  their  use,  and  your 
orator  bound  himself  to  the  said  company  to  furnish  to  them 
the  supply  of  water  so  to  be  obtained  as  aforesaid.  And  your 
orator  here  brings  into  court  and  files  as  a  part  of  his  bill 
of  complaint,  copies  of  the  original  papers,  shewing  the  de- 
mand of  the  said  company  upon  your  orator,  the  obligation  of 
your  orator  to  the  said  company,  witnessed  by  the  said  «/.,  and 
the  obligation  of  the  said  /.  to  convey  when  he,  himself, 
should  procure  a  title,  which  papers  are  retained  by  and  filed 
in  the  office  of  the  B.  and  O.  R.  R.  Co.,  and  cannot  be  at 
this  stage  of  this  proceeding  obtained  by  your  orator,  where- 
fore he  annexes  the  copies  aforesaid,  certified  under  the  seal 
of  said  company,  and  which  he  prays  may  be  taken  as  part  of 
this,  his  bill  of  complaint.  And  your  orator  further  states, 
that  the  said  company  did,  on  the  execution  of  the  said 
papers  proceed  to  dig  and  wall  the  said  springs  and  bring 
them  into  one  head,  over  one  half  of  which  they  built  a  cov- 
ering, capable  of  being  locked  up,  for  their  own  use,  leaving 
the  other  half  open  for  the  use  of  the  said  Jones,  who  thereby 
obtained  a  handsome  spring,  and  ample  supply  of  water, 
where  he  had,  originally,  nothing  but  a  marshy  and  useless 
spot  of  land  ;  and  that  the  said  company,  also,  erected  a  tank 
or  water  station  at  the  intersection  of  the  roads  aforesaid,  and 
laid  down  pipes  to  lead  the  water  into  it  from  the  said  springs, 
and  that  the  said  company  have,  in  accordance  with  their 
understanding  with  your  orator,  ever  since  made  use  of  the 
said  water  station  for  the  purpose  of  supplying  the  engines  of 
their  trains  with  water ;  and  your  orator  further  states,  that  he 
gave  an  instrument  of  writing  as  agreed  upon,  as  aforesaid, 


110  CASES  IN  THE  COURT  OF  APPEALS 


Jones  vs.  Belt. — 1844. 


to  the  said  Jones,  in  which  your  orator  agreed  to  indemnify 
him  for  all  damages  which  he  might  sustain,  by  the  digging 
of  his  fields  or  grounds  for  the  purpose  of  laying  down  the 
pipes  aforesaid.  And  your  orator  further  states,  that  he  put 
up  considerable  and  expensive  buildings  at  the  intersection  of 
the  roads  aforesaid,  and  appropriated  the  same  to  the  purpose 
of  a  tavern  stand  ;  and  that  the  same  are  now  under  rent  to  a 
tenant,  upon  the  condition,  that  one  half  of  the  rent  now  re- 
served is  to  be  abated,  should  the  said  company  cease  to  use 
the  said  water  station  as  heretofore  ;  and  your  orator  further 
states,  that  he  has  been  informed  and  believes,  and  so  your 
orator  expressly  charges,  that  the  said  Jones  hath  now  got  a 
title  to  the  said  land,  and  is  in  a  situation  to  convey  the  said 
spring  and  rights  appendant  thereto,  to  your  orator.  That  he 
has  been  at  all  times  willing  and  ready,  and  that  he  is  now 
willing  and  ready,  to  indemnify  the  said  Jones  for  all  and  any 
damage  that  he  may  have  sustained  by  reason  of  the  digging 
for  and  laying  down  the  pipes  aforesaid  ;  but  that  the  said 
Jones  hath  never  made  any  demand  upon  your  orator  for  dama- 
ges, nor  does  your  orator  believe  that  he  has  sustained  any, 
inasmuch  as  the  said  Jones  has  now  an  available  supply  of 
water  which  he  had  not  before,  and  the  fields  around  the  said 
spring  are  in  grass.  Nevertheless,  jour  orator  is  ready,  and 
tenders  to  pay  whatever  damage  the  said  Jones  may  have  sus- 
tained, as  agreed  upon  between  them  ;  and  your  orator  fur- 
ther states,  that  the  said  Jones  now  wholly  and  peremptorily 
refuses  to  convey  to  your  orator,  as  originally  agreed  upon, 
alleging,  that  your  orator  has  not  paid  him  a  consideration  for 
the  said  spring,  and  with  a  view  to  compel  your  orator  to  pay 
to  him  such  sum  as  the  said  Jones  may  please  to  demand,  as 
consideration  for  the  use  of  said  spring,  and  not  as  damages  for 
laying  down  said  pipes  through  his  fields,  threatens  to  take  up 
the  said  pipes,  or  otherwise  to  stop  the  flow  of  water  from  said 
spring  to  the  said  water  station,  and  has  actually  given  notice 
to  the  said  company,  not  to  water  their  engines  at  the  said  sta- 
tion, and  your  orator  expressly  charges,  that  the  claim  thus 
set  up  by  the  said  Jones  is  without  a  shadow  of  right,  and  is 


OF  MARYLAND.  HI 


Jones  vs.  Belt.— 1844. 


done  maliciously  and  fraudulently  for  the  purpose  of  injuring 
your  orator,  and  with  a  view  to  compel  him  to  pay  for  the  said 
spring,  contrary  to  the  intention  and  agreement  of  the  said 
Jones,  when  the  said  spring  was  made  available,  as  aforesaid; 
and  your  orator  expressly  charges,  that  the  consideration  to 
the  said  Jones  for  the  privilege  of  using  the  said  springs,  was 
the  advantage  that  the  said  Jones  expected  to  derive  and  has 
since  derived,  from  the  making  of  the  same  available  to  him 
for  useful  purposes,  and  the  agreement  of  your  orator  to 
indemnify  for  all  damages  done  by  opening  the  ground  to  lay 
pipes,  as  aforesaid  ;  and  your  orator  further  charges  expressly, 
that  it  was  in  consequence  of  the  undertaking  of  the  said 
Jones  to  convey,  as  aforesaid,  that  your  orator  went  to  the 
expense  of  building  and  improving  his  property,  as  aforesaid. 
And  your  orator  charges,  that  the  interruption  of  the  supply 
of  the  water  of  said  spring,  will  at  once  deprive  his  property 
of  the  advantage  of  being  a  water  station,  which  it  now  has, 
and  besides  reducing  the  rent  paid  by  the  present  tenant  one 
half,  will  otherwise  seriously  and  irreparably  injure  his  said 
property.  And  your  orator  expressly  charges,  as  his  belief 
and  apprehension,  that  the  said  Jones  will,  if  not  restrained  by 
authority  of  this  honorable  court,  take  up  the  said  pipes,  or 
otherwise  interrupt  the  flow  of  water  from  the  said  spring  to 
said  water  station,  doing  to  your  orator  thereby,  a  wrong, 
which  no  action  at  law  can  compensate ;  and  your  orator 
charges  expressly,  that  the  said  Jones  hath  given  notice  to  the 
said  company  to  cease  to  use  the  said  water  station,  supplied 
from  the  said  spring,  all  which  actings  and  doings  are 
contrary,  &c. 

PRAYEB,  that  the  said  Jones  convey  to  your  orator  the 
spring  or  springs  aforesaid,  with  the  rights  appendant  thereto, 
and  that  he  may  be  restrained  from  interfering  with  the  supply 
of  water  to  the  said  water  station,  from  the  said  spring  or 
springs;  for  further  and  other  relief;  for  an  injunction  to  re- 
strain Jones,  &c.,  from  digging  up  the  pipes  leading  from  the 
spring  on  the  said  Jones'  land,  now  used  to  supply  the  water 
station  of  the  B.  and  0.  R.  R.  Co.,  at  the  intersection,  &c.  at 
Beltsville.  &c. 


112  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt.— 1844. 

Exhibit.  "The  President  of  the  B.  and  0.  R.  R.  Co., 
requires  of  Trueman  Belt  an  instrument  of  writing,  with,  at 
least,  one  surety,  under  a  penalty  equivalent  to  expense  incur- 
red by  the  said  company  in  erecting  the  water  station,  com- 
mencing at  Jones'  spring  and  ending  at  the  said  Belt's  store, 
(the  contract  price  is  three  thousand,  seven  hundred  dollars, 
more  or  less,)  to  convey  the  piece  of  ground  offered  to  the 
board,  for  a  house  for  engines,  cars,  &c. ;  also,  the  exclusive 
right  to  the  spring  belonging  to  the  said  /ones,  with  free  egress 
and  ingress,  necessary  to  improve  and  keep  the  same  in  per- 
petual repair.  JONATHAN  JESSOP." 

"  PRINCE  GEORGE'S  COUNTY,  Md.,  September  25,  1835. 

I,  Trueman  Belt,  do  this  day  hereby  bind  myself,  my  heirs, 
administrators,  and  assigns,  to  execute  or  cause  to  be  execu- 
ted, as  soon  as  practicable,  to  the  B.  and  0.  R.  R.  Co.,  the 
necessary  instrument  or  instruments  of  writing,  conveying  to 
the  said  R.  R.  Co.  a  full  and  complete  title  to  the  premises 
herein  mentioned,  or  intended  to  be  mentioned,  according  to 
the  true  intent  and  meaning  of  the  within  instrument  of  wri- 
ting, in  the  penalty  of  the  sum  herein  mentioned,  that  is  to 
say,  three  thousand,  seven  hundred  dollars.  In  witness,  &c, 

(Signed,)  TRUEMAN  BELT,  (Seal.) 
Witness,  (Signed,)  Joseph,  J.  Jones. 

To  PHILIP  E.  THOMAS,  Esq." 

"  Mr.  Trueman  Belt  having  applied  to  me  for  my  spring, 
for  the  use  of  the  B.  and  W.  R.  R.  Co.,  and  I  having  agreed 
with  the  said  T.  B.,  to  convey  to  him  the  right  of  said 
springs,  and  being  informed  by  him  that  the  said  company 
require  a  legal  conveyance  of  the  premises,  previous  to  com- 
mencing the  work  necessary  to  convey  the  water  from  said 
spring  or  springs  to  said  Belt's  new  store,  all  I  can  say  or  do, 
at  present,  is,  that  I  have  lately  purchased  the  land  on  which 
said  spring  or  springs  are  situated,  and  have  not  as  yet  ob- 
tained a  legal  title  thereto,  but  expect  to  get  it  soon,  and  will 
immediately  thereafter  execute,  or  cause  to  be  executed  to  the 
said  T.  B.}  his  heirs,  or  assigns,  a  good  and  sufficient  title  to 


OF  MARYLAND.  113 


Jones  vs.  Belt.— 1844. 


the  within  mentioned  premises,  for  which  I  hereby  bind  my- 
self, my  heirs,  administrators  and  assigns,  in  the  full  and  just 
sum  of  three  thousand,  seven  hundred  dollars.  In  witness 
whereof,  I  hereby  affix  my  hand  and  seal,  this  25th  day  of 
September,  1835.  (Signed,)  JOSEPH  J.  JONES,  (Seal.) 

Witness,  Jlmos  A.  Williams." 

The  Chancellor,  (BLAND,)  on  the  28th   November,  1838, 
ordered  subpoena  and  injunction,  as  prayed. 

The  defendant's  answer  admitted,  that  the  said  complainant 
is  the  owner  in  fee,  of  a  tract  or  parcel  of  land,  situate  at  the 
intersection  of,  &c.  at  &c.,  and  upon  said  land  the  said  com- 
plainant has  a  house  and  improvements,  which  are  now  used 
and  occupied  as  a  tavern  stand,  and  the  value  thereof,  in  a 
great  measure,  consists  in  its  being  a  stopping  and  watering 
place  for  the  trains  of  cars,  passing  on  the  Rail  Road  between 
B.  and  W.  This  defendant  knows  nothing  of  any  enquiries 
made  by  the  said  complainant  of  the  said  B.  and  0.  R.  R. 
Co.,  or  of  any  agreement  made  between  them  for  establishing 
a  water  station  for  the  said  company,  at  the  aforesaid  place ; 
nor  has  he  any  particular  knowledge  of  the  examinations 
made  by  the  said  complainant,  individually,  or  in  concert  with 
the  agents  of  the  said  company,  or  others,  upon  the  lands  of 
this  defendant  or  others,  for  the  purposes  of  discovering  water 
for  the  uses  of  the  said  road.  But  he  believes  that  some  such 
examinations  were  made,  and  that  it  was  known  to  the  said 
complainant  that  there  were  on  the  lands  of  this  defendant, 
and  convenient  to  the  tavern  stand  of  the  complainant,  springs 
of  water,  from  which  a  supply  might  t>e  obtained  in  requisite 
abundance  for  all  the  purposes  of  the  said  tavern  stand,  and 
of  a  water  station  of  said  company.  This  defendant  denies 
that  said  land  where  the  said  springs  existed,  presented  at  the 
time  of  the  pretended  discovery  thereof,  no  appearance  of  an 
open  and  running  spring,  available,  in  its  then  condition,  for 
useful  purposes  ;  on  the  contrary,  he  avers,  that  on  said  land,  at 
the  very  place  indicated  by  the  defendant  in  his  bill,  and  at  the 
very  time  of  the  said  pretended  discovery,  there  was,  and  for 
many  years  before  had  been,  a  spring  of  running  water;  which 
15  v.2 


114  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt.— 1844. 

spring,  at  the  aforesaid  time,  was  used,  and  for  many  years 
before  had  been  used  by  your  orator  and  his  family,  and 
by  the  former  owner  of  said  land  and  his  family,  for  the 
supply  of  water  for  all  their  domestic  or  family  purposes  ;  and 
this  fact  was  well  known  to  the  said  complainant  at  the  time  of 
his  aforesaid  pretended  examination ;  and  this  defendant  ad- 
mits, that  in  the  vicinity  of  the  aforesaid  spring  the  ground 
was  damp,  wet,  and  sobby,  and  indicated  the  presence  or  ex- 
istence of  other  springs  of  water,  which  might  be  collected 
into  one  head  and  made  available  for  the  purposes  of  a  water 
station,  as  aforesaid  ;  but  all  this  was  before  the  time  of  said 
pretended  discovery  well  known  to  this  defendant,  and  might 
have  been  discovered  by  the  complainant  without  encountering 
all  the  labor  which  he  pretends  that  he  devoted  to  the  pur- 
pose. And  this  defendant  admits,  that  after  the  complainant 
discovered  that  a  supply  of  water  for  the  purposes  aforesaid, 
could  be  obtained  from  the  aforesaid  land  of  this  defendant, 
he  applied  to  this  defendant  for  permission  to  collect  said 
springs  into  one  reservoir,  on  the  land  of  this  defendant,  and 
thence  to  conduct  them  through  the  land  of  this  defendant  by 
suitable  pipes,  to  the  intersection  of  the  aforesaid  roads,  and 
there  to  furnish  a  supply  of  water  to  the  tank  or  water  station 
there  proposed  to  be  built,  offering  at  the  same  time  to  this 
defendant  to  pay  to  him  so  much  as  he  reasonably  deserved  to 
have  for  said  privilege,  to  which  proposition  this  defendant 
acceded ;  but  this  defendant  being  at  the  time  unable  to  say 
what  sum  he  would  demand  for  the  privilege  aforesaid,  not 
knowing  what  would  be  the  extent  of  loss  and  inconvenience 
to  which  hfe  might  thereby  be  subjected,  it  was  agreed  and 
understood  between  the  said  complainant  and  this  defendant, 
that  the  former  might  enter  on  the  lands  of  this  defendant, 
and  thereon  erect,  a  reservoir  for  the  purpose  of  collecting  said 
waters,  and  lay  pipes  through  the  lands  of  this  defendant,  for 
conveying  said  waters  to  the  tank  or  reservoir  to  be  erected  at 
the  water  station  of  the  said  company,  as  aforesaid,  and  that 
at  a  future  day  this  defendant  and  the  said  complainant  should 
ascertain  and  fix  the  sura  to  which  the  said  defendant  should 


OF  MARYLAND.  115 


Jones  vs.  Belt.— 1844. 


be  entitled,   as   aforesaid.     This  defendant   denies   that   he 
agreed  to  permit  the  said  complainant  to  use  his  aforesaid 
springs  for  the  purposes  aforesaid,  upon  or  with  the  under- 
standing, that  when   the  said  springs  were  collected  into  a 
common  reservoir,  and  the  same  walled  up,  that  one  half  of 
said  reservoir  should  be  left  open  for  the  use  of  this  defendant, 
and  upon  condition  that  the  complainant  would  agree  to  in- 
demnify this  defendant  for  all  damage  that  he  might  sustain  in 
the  opening  of  his  ground  for  the  purpose  of  laying  down  pipes 
to  conduct  the  water  from  the  said  spring  to  the  water  station 
aforesaid  ;  and  he  further  denies  that  he  required  no  other  com- 
pensation for  the  use  of  the  said  springs  in  their  then  condi- 
tion, than  the  use  of  one  half  of  the  spring,  when  it  should, 
by  walling  and  digging,  as  aforesaid,  be  made  available  for 
useful  purposes,  and  an  agreement,  that  the  said  complainant 
would  indemnify  this  defendant  for  damages  which  he  might 
snstain  by  laying  down  pipes  as  aforesaid  ;  on  the  contrary, 
this  defendant    avers,  that    he  did    insist  upon   and  require 
compensation  to  be  made  him  by  the  complainant  for  the  use 
of  his  aforesaid  springs,  and  yielded  to  the  complainant  the 
privilege  aforesaid,  only  in  faith  of  the  complainant  undertak- 
ing to  pay  him  therefor,  so  soon  as  the  amount  which  he  de- 
served to  have   could   be   ascertained,  and  that  nothing  ever 
passed  between  the  said  complainant  and  this  defendant  about 
dividing  said  reservoir;  but  for  some  time  after  the  same  was 
erected,  it  was  open  for  the  common  use  of  this  defendant  and 
the  said  company,  and  afterwards,  at  the  solicitation  of  an 
agent  of  the  said  company,  this  defendant  agreed  that  the  said 
company  might  divide  the  said  reservoir,  leaving  open  one 
part  thereof,  might  cover  in  the  other  part  thereof  for  their  own 
use,  and  he  denies  that  the  arrangement  between  the  said  com- 
plainant and  himself  in  reference  to  the  damages  which  he 
should  sustain,  by  the  entering  upon  and  opening  his  ground 
for  the  purpose  of  laying  or  repairing  said  pipes,  was  intended 
to  affect  his  right  to  compensation  for  the  use  of  his  springs, 
as  aforesaid,  nor  can  it  have  any  such  influence  ;   and  this 
defendant  avers,  that  agreeing  with  the  complainant,  as  is  here- 


116  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt. — 1844. 

in  before  admitted,  and  understanding  that  the  B.  and  0.  R. 
R.  Co.  desired  some  assurance  that  he  had  agreed  to  permit 
the  water  to  be  taken  from  his  springs  to  the  station  of  the 
said  company,  he  did  agree  to  write,  and  actually  signed  a  let- 
ter to  the  President  of  said  company,  of  which  the  paper  JJJ, 
No.  1,  and  filed  herewith  as  part  of  this  answer,  professes  to 
be  a  copy ;  but,  he  submits,  that  the  same  does  not  profess  to 
state  the  terms  of  the  agreement  between  the  complainant  and 
himself,  but  simply  admits  the  fact  that  an  agreement  between 
them  had  been  made,  and  expresses  the  willingness  of  this  de- 
fendant to  abide  by  and  execute  the  same  ;  and  this  defendant 
denies  that  the  complainant  at  the  time  aforesaid  required  him 
to  make  a  conveyance  for  said  springs,  this  defendant  was  not 
prepared  at  the  moment  to  make  any  such  conveyance,  as  he 
had  no  legal  title  to  the  land,  and  it  was  always  expected  by 
this  defendant,  that  he  was  to  be  satisfied  for  his  springs  be- 
fore he  should  be  required  to  convey  them  to  the  complainant, 
and  this  defendant  wrote  the  letter  aforesaid  in  the  confidence, 
that  the  said  complainant  v/ould  be  as  prompt  to  comply  with 
his  part  of  the  agreement  aforesaid,  as  this  defendant.  And 
this  defendant  admits,  that  after  the  receipt  of  the  aforesaid  let- 
ter, the  said  company  proceeded  to  dig  out  and  wall  up  the 
aforesaid  spring,  and  some  time  afterwards,  and  after  this  de- 
fendant and  the  said  company,  had  in  common  used  the  whole 
reseivoir,  the  said  company  with  the  permission  of  this  defen- 
dant, as  aforesaid,  covered  over  one  half  part  thereof,  and  this 
defendant  admits,  that  he  has  now  in  the  other  part  of  the  said 
reservoir  an  abundant  supply  of  water,  but  he  insists  that  he 
had,  before  such  improvement  made,  a  sufficient  supply  for  all 
his  purposes ;  and  that  the  water,  which  formerly  was  of  the 
first  quality  has,  by  the  walling  up  and  introduction  of  metallic 
pipes  therein,  become  greatly  deteriorated,  so  that  his  condi- 
tion at  present  is  by  no  means  as  good  as  it  was  formerly.  And 
this  defendant  also  admits,  that  the  said  company  has  erected 
a  tank  for  water,  at  the  intersection  of  said  roads,  and  laid 
pipes  to  lead  the  waters  from  said  springs  thereto,  and  has 
established  a  water  station  at  the  aforesaid  place;  and  this 


OF  MARYLAND.  117 


Jones  vs.  Belt. — 1844. 


defendant  admits,  that  the  said  complainant  executed  to  him 
the  instrument,  marked  Exhibit  JJJ,  No.  2,  and  filed  as  part 
of  this  answer,  but  the  same  was  intended  merely  to  indem- 
nify this  defendant,  from  the  damages  which  he  might  sustain 
from  the  agents  of  the  company,  in  entering  on  his  aforesaid 
lands,  and  opening  the  same  for  the  purpose  of  laying  or  re- 
pairing the  water  pipes,  as  aforesaid,  and  was  not  intended  to 
set  out,  nor  does  it  set  out,  the  terms  upon  which  the  use  of 
his  springs  was  to  be  given  to  the  said  complainant,  as  that 
contract  was  to  be  complied  with  as  soon  as  the  parties  could 
determine  what  compensation  was  to  be  given  to  this  defen- 
dant, it  was  not  deemed  important  to  reduce  the  same  into 
writing ;  and  this  defendant  admits,  that  after  said  agreement, 
the  said  complainant  made  considerable  improvements  on  his 
aforesaid  lands,  and  although  he  knows  nothing  of  the  agree- 
ment between  the  complainant  and  his  lessee,  he  has  yet  no 
doubt  and  is  willing  to  admit,  that  the  said  premises  rent  at 
this  moment  for  more  than  they  would  rent  in  case  the  water 
station  of  the  said  company,  now  at  the  place,  was  broken  up, 
And  this  defendant  denies  that  he  has  obtained  a  legal  title  to 
said  land,  and  even  if  he  had,  he  admits  that  he  would  be 
unwilling  to  execute  a  conveyance  of  his  springs  to  said  com- 
plainant, and  he  denies  his  obligation  to  make  any  such  con- 
^veyance  until  he  is  compensated,  as  well  for  the  use  of  the 
springs,  as  for  the  injury  he  has  sustained  by  the  constructing 
of  the  reservoir  and  laying  pipes  through  his  lands,  and  he 
admits  too,  that  he  has  given  notice,  as  well  to  the  complain- 
ant as  to  the  company,  of  his  aforesaid  claims,  and  of  his  reso- 
lution to  cut  off  the  supply  of  water  from  said  station,  unless 
his  reasonable  demands  are  complied  with ;  and  he  again  de- 
nies that  he  conceded  to  the  complainant  the  right  or  privilege 
of  using  said  springs,  in  consideration  of  the  advantage  that 
he  expected  to  derive  from  making  the  same  available,  as 
aforesaid,  and  of  the  agreement  of  indemnity,  as  aforesaid, 
and  he  begs  leave  to  deny  that  he  wishes  to  injure  the  pro- 
perty of  the  said  complainant,  or  to  deprive  him  of  any  of  the 
advantages  which  he  anticipated  from  his  improvements 
thereon.  He  is  willing  to  abide  by  his  agreement,  and  he  only 


118  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt.— 1844. 

requires  that  it  may  be  executed  by  the  said  complainant,  and 
this  defendant  denies  all  fraud  with  which  he  is  charged,  and 
prays  that  the  injunction  heretofore  granted  in  the  cause,  may 
be  dissolved,  &c. 

The  Exhibit  JJJ,  No.  1,  filed  with  defendant's,  was  a  copy 
of  the  instrument  sealed  by  him  on  the  25th  September,  1835, 
addressed  to  Philip  E.  Thomas,  Esq.  (Seepage,  112.) 

The  Exhibit  JJJ,  No.  2,  viz  : 

"Know  all  men  by  these  presents,  that  I,  Trueman  Belt,  of, 
&c.,  am  held  and  firmly  bound  unto  Joseph  J.  Jones,  of  &c., 
in  the  sum  of  $3,700,  to  be  paid  to  the  said  J.  /.  /.,  his  &c., 
which  payment  well  and  truly  to  be  made  and  done,  I  bind 
myself,  my  &c.,  firmly  by  these  presents,  sealed  with  my  seal 
and  dated  this  25th  September,  1835. 

Whereas  the  above  named  Trueman  Belt,  has  contracted 
with  the  above  named  Joseph  J.  Jones  for  the  exclusive  use  of 
his,  (the  said  Joseph  J.  Jones,)  springs,  for  the  purpose  of 
conveying  water  therefrom,  for  the  use  of  the  Baltimore  and 
Ohio  R.  R.  Co.,  and  the  right  to  enter  by  such  way  as  may  be 
most  convenient,  and  open  a  ditch  to  convey  the  water  from 
said  springs  by  pipes  to  the  said  BeWs  new  store.  Now  the 
condition  of  the  above  obligation  is  such,  that  the  above 
named  Trueman  Belt  shall,  at  all  times,  save  harmless  the  said 
Joseph  J.  Jones,  his  heirs  and  assigns,  and  make  good  to  him, 
or  them,  all  the  damages  that  he,  the  said  Joseph  /.,  his  heirs 
or  assigns  may  sustain,  by  the  said  Rail  Road  Company  en- 
tering upon  the  said  Jones9  land,  for  the  purpose  of  opening 
the  necessary  conveyance  of  said  water,  as  above  specified, 
and  also  for  entering  thereon  for  the  purpose  of  making  any 
repairs  that  may  ever  be  necessary,  then  the  obligation  to  be 
void  and  of  none  effect,  else  to  remain  and  be  of  full  force  and 
virtue  in  law.  TRUEMAN  BELT,  (Seal.) 

Signed,  sealed  and  delivered,  in  the  presence  of  Jlmos  A. 
Williams." 

The  complainant  then  pleaded  the  general  replication,  and 
a  commission  was  issued  :  so  much  of  the  proof  as  is  essential, 
will  be  found  in  the  opinion  of  this  court. 


OF  MARYLAND.  119 


Jones  vs.  Belt. — 1844. 


At  July  term,  1843,  (BLAND,)  Chancellor,  decreed,  that  the 
injunction  be  made  perpetual ;  that  the  defendant  Joseph  J. 
Jones,  forthwith  execute,  acknowledge  and  deliver,  according 
to  law,  a  good  and  sufficient  deed,  conveying  from  him  unto 
the  plaintiff,  Trueman  Belt,  his  heirs  and  assigns,  all  right, 
interest  and  use,  of,  in,  and  to  the  lands  in  the  bill  of  complaint 
mentioned,  to  the  extent  and  upon  the  terms  as  therein  set 
forth ;  and  costs. 

From  this  decree  the  defendant  appealed  to  this  Court. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 

By  ALEXANDER  for  the  appellant,  and 
By  PRATT  and  LATROBE  for  the  appellee. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

The  real  question  in  dispute  in  this  case,  looking  to  the 
merits  of  the  matters  in  controversy,  is,  whether  agreeably  to 
the  contract  between  the  parties,  the  appellee  was  bound  to 
pay  any  thing  to  the  appellant  for  the  use  made  of  his  springs, 
and  the  water  conveyed  from  them  ? 

According  to  the  contract  alleged  in  the  bill,  no  such  payment 
was  to  be  made.  But  this  allegation  is  positively  denied  by  the 
answer,  which  asserts,  that  the  appellee  applied  to  the  appellant 
for  permission  to  collect  said  springs  into  one  reservoir,  on  the 
land  of  the  appellant,  and  thence  to  conduct  them  through  his 
lands  by  suitable  pipes,  to  the  intersection  of  the  Washington 
branch  of  the  Baltimore  and  Ohio  Railroad,  and  the  turnpike 
between  Baltimore  and  Washington,  and  there  to  furnish  a 
supply  of  water  to  the  tank  or  water  station,  there  proposed  to 
be  built ;  offering  at  the  same  time  to  the  appellant,  to  pay  him 
so  much  as  he  reasonably  deserved  to  have  for  said  privilege: 
to  which  proposition  the  defendant  acceded ;  but  that  the  appel- 
lant, being  at  the  time  unable  to  say  what  sum  he  would  demand 
for  the  privilege  aforesaid,  not  knowing  what  would  be  the 
extent  of  loss  and  inconvenience  to  which  he  might  thereby 


120  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt.— 1844. 

be  subjected,  it  was  agreed  and  understood  between  the  said 
appellee  and  appellant,  that  the  former  might  enter  on  the 
lands  of  the  latter,  and  thereon  erect  a  reservoir  for  the  pur- 
pose of  collecting  said  waters,  and  lay  pipes  through  the 
appellant's  lands  for  conveying  said  waters  to  the  tank  or 
reservoir,  to  be  erected  at  the  water  station  of  the  said  com- 
pany as  aforesaid,  and  that  at  a  future  day,  the  appellant  and 
appellee  should  ascertain  and  fix  the  sum  to  which  said  appel- 
lant should  be  entitled,  as  aforesaid. 

The  argument  on  behalf  of  the  appellant  appears  to  assume, 
that  it  is  requisite  not  only  to  remove  the  effect  of  the 
appellant's  denial  of  the  agreement  charged  in  the  bill,  by 
the  proof  of  two  witnesses,  or  that  of  one  witness  and 
pregnant  circumstances ;  but  that  it  is  requisite  by  like 
testimony  to  disprove  the  agreement,  and  its  concomitant 
circumstances  set  out  in  the  appellant's  answer.  The  cor- 
rectness of  this  assumption  may  well  be  questioned,  when 
by  adverting  to  the  bill,  it  appears  that  the  appellant  was  not 
called  on  to  state  whai  was  the  contract  between  the  parties, 
but  to  admit  or  deny  whether  he  made  the  agreement  charged 
in  the  bill.  To  such  a  bill  it  can  hardly  be  assumed,  that  the 
appellant's  statement  of  the  contract  was  simply  responsive 
to  that  which  he  was  called  on  to  admit  or  deny. 

There  having  been  no  exceptions  taken  in  the  court  belowy 
either  to  the  admissibility  of  testimony  or  insufficiency  of  the 
averments  in  the  bill,  to  which  the  testimony,  is  to  be  applied, 
let  us  see  whether  the  appellee  has  proved  a  case  in  its  gene- 
ral outlines  or  essential  parts,  correspondent  with  that  stated  in 
the  bill :  and  in  the  next  place  let  us  inquire,  whether  the 
proof  so  offered  is  sufficient,  also,  to  countervail  the  positive 
denial  in  the  appellant's  answer  ? 

The  nature  of  the  transaction  in  question,  makes  it  ap- 
parent, that  the  inspection  of  the  springs  by  Samuel  Sprigg 
and  Jlmos  Ji.  Williams,  two  of  the  railroad  directors,  and 
the  conversation  then  held  with  the  appellant,  was  prior 
in  point  of  time  to  any  definite  contract  between  him  and 
the  appellee ;  as  the  sole  motive  of  the  appellee  to  enter 


OF  MARYLAND.  121 

Jones  vs.  Belt. — 1844. 

into  the  contract,  was  to  carry  into  effect  a  contract  in 
regard  to  the  erection  of  a  water  station  by  the  Rail  Road 
Company,  which,  of  course,  and  as  the  testimony  shews,  it 
would  not  enter  into,  until  it  had  ascertained  that  the  supply 
of  water  was  adequate.  Until  then,  the  company  agreed  to 
contract  with  the  appellee,  it  cannot  be  presumed  that  he 
entered  into  any  definitive  contract  with  the  appellant.  The 
testimony  of  Sprigg,  shows,  that  for  the  construction  of  the 
reservoir  and  use  of  the  water,  the  appellant  desired  no  com- 
pensation, unless  he  sustained  an  actual  injury  thereby ;  and 
at  that  time  he  could  not  conceive  how  he  could  be  thus 
injured.  Under  such  impressions,  that  he  should  in  this 
respect  have  made  the  contract  stated  in  the  bill  of  complaint 
is  in  a  high  degree  probable.  But  we  think  there  is  no  room 
for  conjectures  or  probabilities  on  the  subject,  when  we  advert 
to  the  appellant's  exhibits  JJJ  No.  1,  and  JJJ  No.  2,  which  in 
the  view  of  a  court  of  equity,  constitute  one  written  agreement 
between  the  parties  in  relation  to  the  matters  now  in  contro- 
versy. Instead  of  one  written  agreement,  signed  by  both 
parties,  each  gave  to  the  other  an  instrument  of  writing,  con- 
taining the  stipulations  by  which  the  subscribers  were  to  be 
respectively  bound.  JJJ  No.  1,  enumerating  the  acts  to  be 
done  by  the  appellant,  and  JJJ  No.  2,  the  duties  required  of 
the  appellee ;  in  execution  of  their  agreement,  JJJ  No.  2, 
disproves  the  statement  of  the  agreement  as  made  by  the 
answer,  sustains  the  allegation  in  the  bill,  that  nothing  was  to 
be  paid  by  the  appellee  to  the  appellant,  for  the  use  of  the 
springs  and  the  water,  and  of  itself  outweighs  the  positive 
denial  of  that  fact  by  the  answer.  It  is  not  pretended  by  the 
answer,  nor  has  any  proof  been  offered  to  establish  it,  that 
there  was  any  separate  stipulation  for  the  payment  of  the 
amount  of  damages  done  to  the  springs,  and  of  the  value  of 
the  abstract  privilege  of  using  the  water.  The  answer  itself 
repudiates  such  an  idea.  If  then,  it  were  the  design  of  the 
appellant  to  insist  on  such  a  claim,  for  what  conceivable  reason 
was  such  a  stipulation  left  out  of  JJJ  No.  2.  There  is  no  alle- 
gation that  it  was  done  by  fraud  or  mistake.  We  must  there- 
16  v.2 


122  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt. — 1844. 

fore  regard  such  a  claim  as  forming  no  part  of  the  contract 
between  the  parties. 

Having  expressed  our  opinion  as  to  the  merits  of  this  con- 
troversy, we  will  now  consider  some  of  the  objections,  taken 
by  the  appellant  to  the  chancellor's  decree,  most,  if  not  all  of 
which,  are  rather  of  a  technical  character,  than  otherwise. 
And  first,  as  to  the  appellant's  objection  to  the  decree,  that  it 
has  been  passed  against  the  positive  denial  in  the  answer  of 
the  contract  stated  in  the  bill,  which  denial  has  not  been  con- 
tradicted or  outweighed  by  the  proof  of  two  witnesses,  or 
one  witness  and  pregnant  circumstances,  according  to  the 
well  established  principles  of  a  court  of  equity.  In  answer 
to  this  objection  we  have  only  to  say,  that  the  principle  on 
which  it  is  predicated  is  not  one  of  universal  application, 
though  undeniably  true  as  a  general  rule ;  yet  to  the  circum- 
stances of  this  case  it  has  no  application.  Here  the  two 
papers  which  this  court  have  declared  constitute  the  agree- 
ment of  the  parties  were  exhibited,  and  admitted,  in  the 
appellant's  answer,  and  are  sufficient  to  control  the  denials  in 
the  answer,  without  the  aid  of  any  oral  testimony  in  their 
support.  The  cases,  to  which  the  rule  was  intended  to  apply, 
must  be  those  in  which  the  facts  denied,  depended  on  oral 
only,  or  oral  and  circumstantial  evidence ;  not  where  they 
were  conclusively  proved  by  the  production  of  the  written 
contract  of  the  parties.  Nor  are  the  exceptions  to  the  rule 
confined  to  cases  where  the  contract  denied  has  been  formally 
signed  and  executed  by  the  parties.  As  for  example  ;  sup- 
pose a  verbal  contract  were  made,  to  which  no  witness  could 
testify,  and  never  had  been  reduced  to  writing,  and  executed 
as  the  agreement  of  the  contracting  parties,  and  a  complainant 
charging  and  seeking  the  performance  of  such  contract,  were 
to  exhibit  with  his  bill  twenty  letters  written  by  the  defendant 
to  third  persons,  stating  the  contract  in  every  particular:  all 
of  which  letters  \vere  admitted  to  be  genuine  by  the  answer; 
which  however  denied  the  contract.  Could  it  be  contended 
that  such  letters  would  be  less  satisfactory  than  the  proof  of 
twenty  witnesses  who  may  have  heard  the  defendant,  on  one 


OF  MARYLAND.  123 


Jones  vs.  Belt. — 1844. 


occasion  only,  state  or  admit  the  same  facts  that  were  contained 
in  the  letters?  Or  that  although  the  proof  of  two  such  wit- 
nesses would  be  sufficient  to  entitle  the  complainant  to  the 
decree  he  sought,  yet  that  the  twenty  letters  would  not?  The 
absurdity  of  applying  this  Chancery  rule  to  such  a  case  is  too 
glaring  to  be  countenanced  for  a  moment. 

Another  objection  urged  to  the  Chancellor's  decree,  is  that 
it  enjoins  the  execution  of  a  conveyance  by  the  appellant 
before  he  has  acquired  a  legal  title  to  the  premises  to  be  con- 
veyed; upon  the  acquisition  of  which  title  only  he  bound  him- 
self to  convey.  If  this  objection  as  to  want  of  title  were 
made  by  a  vendee,  against  whom  a  decree  for  the  specific  per- 
formance of  a  contract  of  purchase  was  sought,  it  would  be 
insuperable  in  ordinary  circumstances.  As  ordinarily  a  Chan- 
cery court  would  not  compel  a  purchaser  to  pay  the  purchase 
money,  and  accept  a  defective  title.  But  what  interest  the 
vendor  has  in  setting  up  a  defect  in  his  own  title,  as  a  bar,  to  a 
conveyance  called  for  by  a  vendee,  who  is  willing  to  accept 
such  defective  title,  it  is  difficult  to  conceive.  He  certainly 
cannot  be  prejudiced  by  such  a  conveyance,  and  consequently 
it  forms  no  ground  for  the  reversal  of  the  Chancellor's  decree 
at  his  instance.  And  such  a  defence  comes  with  a  bad  grace 
from  the  appellant,  after  having  nine  or  ten  years  before  exe- 
cuted his  exhibit  J  J  J,  No.  1,  and  without  having  assigned 
any  reason  or  apology  for  his  having  so  long  neglected  to  per- 
fect his  title. 

The  next  objection  raised  to  the  decree  is,  that  it  is  too 
vague  and  uncertain  in  defining  the  thing  to  be  conveyed,  and 
that  it  directs  the  conveyance  of  the  title  of  the  appellant  to 
all  the  lands  mentioned  in  the  complainant's  bill. 

We  do  not  think  the  decree,  upon  a  fair  interpretation  of  it, 
obnoxious  to  the  exceptions  thus  taken  to  it.  It  refers  to  the 
bill,  as  showing  the  lands  on  which  the  conveyance  was  to  ope- 
rate, and  the  extent  of  the  right  or  interest  intended  to  be  trans- 
ferred. From  the  nature  and  circumstances  of  this  whole  trans- 
action, it  is  rcani/est,  that  it  was  not  necessary  nor  intended  that 
there  should  be  a  conveyance  of  the  land  itself;  but  of  a  mere 


124  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Belt.— 1844. 

privilege  or  easement  exercisable  upon,  or  flowing  out  of  the 
land  to  which  it  was  applicable.  As  this  contract  was  made  for 
the  purpose  of  securing  a  beneficial  easement  to  the  rail  road 
company,  and  as  the  rail  road  company,  by  its  agents,  have 
contracted  with  the  appellant,  that  one  half  of  the  reservoir 
should  be  left  open  for  the  use  of  the  appellant,  to  which  the 
appellee  hath  assented,  it  is  right  and  proper  that  the  convey- 
ance directed  by  the  said  decree,  should  make  provision  for 
the  same;  and  should  also  secure  to  the  appellee  the  privilege 
of  entering  on  the  lands  of  the  appellant,  for  making  all  neces- 
sary repairs  to  the  pipes  conveying  the  water  from  the  reservoir 
to  the  water  station,  upon  the  said  appellee,  his  heirs,  execu- 
tors, administrators  or  assigns,  thereafter  paying  to  the  said 
appellant,  his  heirs  and  assigns,  for  the  damage  done  to  him 
or  them,  as  the  case  may  be,  by  the  making  of  the  said  repairs; 
and  should  also  secure  to  the  said  appellees,  his  heirs  and  as- 
signs, an  entry  upon  the  said  lands  of  the  appellant  for  the 
purpose  of  making  the  necessary  repairs  to  the  said  reservoir, 
and  rendering  it  effective  for  the  purpose  for  which  it  was  con- 
structed. And  for  the  purpose  of  providing  for  these  objects 
and  removing  all  doubt  as  to  the  nature  of  the  interest  in  the 
lands  of  the  appellant,  designed  to  be  conveyed  to  the  appel- 
lee, this  court  will  sign  a  decree  affirming  the  decree  of  the 
Chancellor,  with  costs,  and  making  the  appropriate  additions 
thereto,  to  accomplish  the  objects  aforesaid.  For  the  recovery 
of  the  damages,  if  any,  which  the  appellant  has  sustained  by 
the  laying  down  of  the  pipes  by  which  the  water  is  conveyed 
from  the  reservoir  to  the  wrater  station,  he  is  left  to  his  remedy 
upon  his  exhibit  J  J  J,  No.  2. 

DECREE  AFFIRMED. 


OF  MARYLAND.  125 


Jones  vs.  Plater. — 1844. 


WASHINGTON  JONES,  KT  AL.  vs.  WILLIAM  PLATER,  ADM'R 
OF  JOHN  R.  PLATER. — December  1844. 

Upon  a  contract  to  sell  a  part  of  a  tract  of  land  called  G.  Manor,  supposed  to 
contain  988  1-2  acres,  more  or  less,  at  the  price  of  nine  dollars  per  acre, 
the  parties  intended  that  the  number  of  acres  should  be  fixed  by  the  con- 
tract, and  not  by  subsequent  measurement.  Unless  the  words  more  or  less 
lead  to  such  a  conclusion,  they  are  useless  and  insensible ;  made  in  good 
faith,  they  qualify  the  representation  of  quantity. 

A  contract  must  be  interpreted  by  its  terms. 

When  a  tract  of  land  is  sold,  supposed  to  contain  998  1-2  acres,  more  or  less, 
the  number  of  acres  is  not  of  the  essence  of  the  contract ;  and  a  deficiency 
of  55  acres  in  such  a  case,  is  not  of  such  a  character  as  to  induce  belief 
of  fraud  or  mistake. 

APPEAL  from  the  Court  of  Chancery. 

The  bill  was  filed  by  the  appellee  on  the  9th  October  1832, 
and  alleged  that  John  JR.  Plater,  on  the  30th  November  1817, 
sold  to  a  certain  John  Darnall,  a  part  of  a  tract  of  land  called 
" Great  Elkton  Head  Manor,"  containing  988|  acres,  MORE 
or  LESS,  at  and  for  the  sum  of  $9  per  acre,  as  per  exhibit  A. 
That  J.  D.  paid  a  part  of  the  purchase  money,  and  died.  The 
appellants  were  his  personal  representatives.  The  bill  prayed 
a  discovery  of  the  assets  of  DarnaWs  estate,  and  payment  of 
a  balance  of  purchase  money,  after  an  account  had  between 
the  representatives  of  the  parties  to  the  original  contract,  and 
in  case  of  deficiency  of  personal  assets,  a  sale  of  the  land, 
the  equitable  title  to  which  had  descended  to  various  minors 
and  femes  covert. 

EXHIBIT  A — Filed  with  the  Bill. 

This  agreement  and  covenant  between  John  Rousby  Plater, 
of,  &c.,  on  the  one  part,  and  John  Darnall,  of  &c.,  of  the 
other:  witnesseth,  that  the  said  John  R.  Plater  sells  to  the 
said  John  Darnall,  a  part  of  a  tract  of  land  called  Great 
Elkton  Head  Manor,  including  the  mill  seat  and  mill,  supposed 
to  contain  nine  hundred  and  ninety-eight  and  a  half  acres, 
more  or  less,  at  the  price  of  nine  dollars  per  acre.  The  said 
Darnall  binds  himself  to  make  the  following  payments  on  the 


126  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Plater. — 1844. 

1st  January  1817,  the  sum  of  $2,000;  and  the  balance  of  the 
purchase  money  in  two  equal  annual  payments,  from  the  1st 
January  1817,  with  the  legal  interest  annually  on  the  whole 
balance  unpaid,  and  the  aforesaid  J.  R.  Plater  obliges  himself 
to  convey  in  fee  to  the  said  John  Darnall,  on  the  payments 
being  completed,  each  party  having  a  copy  of  this  bargain 
and  agreement,  dated  this  30th  day  of  November  1816. 

J.  R.  PLATER, 
JOHN  DARNALL. 

After  the  bill  had  been  taken  pro  con/mo,  under  an  order 
of  publication  against  some  of  the  defendants,  the  answers  of 
the  infant  defendants  taken  by  guardian,  others  of  the  defen- 
dants answered  the  bill  and  admitted  the  contract  of  1817, 
and  alleged  that  a  resurvey  of  the  land  was  made  by  and  with 
the  consent  of  J.  R.  P.,  about  the  1st  April  1829,  by  which  it 
appeared  the  land  contained  943,  instead  of  988^  acres.  The 
defendants  claimed  a  reduction  in  price  for  F5|  acres,  at  $9 
per  acre,  and  controverted  the  state  of  the  accounts  as  men- 
tioned in  the  bill  of  complaint,  denying  insufficiency' of  assets 
to  pay  the  sum  really  clue,  but  admitted  there  was  nothing 
beyond  that  sura. 

A  commission  was  then  issued,  proof  taken,  and  the  cause 
referred  to  the  auditor,  who  stated  an  account  showing  $2,355. 
23  due  the  complainants,  on  the  basis  of  a  sale  of  9S9|  acres 
at  $9. 

It  was  agreed  that  the  only  question  to  be  presented  to  the 
Chancellor  was,  whether  the  defendants  were  to  be  charged 
with  the  quantity  of  998^  acres,  at  the  price  of  $9,  as  claimed 
by  the  plaintiff,  or  with  943  acres  as  alleged  by  the  defendant. 

On  the  2nd  March  1843,  the  Chancellor  (BLAND,)  affirmed 
the  auditor's  report,  and  decreed,  that  unless  the  sum  due 
should  be  paid  by,  &c.,  the  land  should  be  sold  for  the  purpose 
of  paying  the  complainant. 

From  this  decree  the  defendant  appealed. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 


OF  MARYLAND.  127 


Jones  vs.  Plater. — 1844. 


By  A.  RANDALL,  for  the  appellants,  who  cited;  3  Stark. 
Ev.  1043,  1044;  5  Cranch,  234;  1  Cain  S.  C.  R.  168;  18 
John.  73;  5  G.  &  J.  147;  7  G.  4r  /.  331 ;  4  Wendell,  58;  19 
Wendell,  320;  11  G.  Sf  J.  314;  2  Sto.  Eq.  53,69;  15  Vet. 
Jr.  516;  1  Ves.  %  Bea.  524;  2  JoAn.  37;  4  jHen.  #  ^^n.  82; 
Sugden  on  Ven.  102. 

By  J.  JOHNSON,  for  appellee,  who  cited:  4  Mason,  417;  1 
Ves.  Sf  Bea.  375;  6  Bin.  102;  4  G.  £  /.  478,  488;  4  ff. 
4r  /.  278;  6  Harr.  $  John.  24. 

ARCHER,  J.,  delivered  the  opinion  of  this  court. 

The  determination  of  this  case  depends  on  the  construction 
of  the  contract  of  the  parties,  of  the  30th  of  November  1816. 
The  question  to  be  decided  is,  whether  the  parties  intended 
that  the  number  of  acres  should  be  fixed  by  the  contract,  at 
998|  acres,  or  whether  it  was  designed  that  the  quantity  should 
be  ascertained  by  measurement  and  paid  for,  according  to  the 
number  of  aeres  the  land  should  actually  contain  ?  The  words 
of  the  contract  are  :  "  the  said  John  R.  Plater  sells  to  the 
said  John  Darnall  a  part  of  a  tract  of  land  called  Great  Elk- 
ton  Head  Manor,  including  the  mill  seat  and  the  mill,  supposed 
to  contain  998|  acres,  more  or  less,  at  nine  dollars  per  acre." 
The  insertion  in  the  contract  of  the  terms  more  or  less,  indu- 
ces us  to  believe  it  to  be  the  intention  of  the  parties  that  the 
land  to  be  paid  for  was  998^  acres ;  and  not  that  the  quantity 
to  be  paid  for,  was  to  be  that  which  it  should  be  found  actually 
to  contain.  Unless  the  words  "more  or  less"  lead  to  such  a 
conclusion,  they  are  useless  and  insensible.  The  contract 
must  be  interpreted  by  its  terms,  and  from  an  examination  of 
its  terms  alone,  we  have  arrived  at  the  conclusion  above 
stated. 

If  it  were  competent  to  look  out  of  the  instrument,  the 
intention  of  the  parties  clearly  appeared  on  the  first  of  Novem- 
ber 1816,  by  the  agreement  of  that  day,  that  the  sale  should 
be  of  998^  acres,  at  $9  per  acre,  whether  it  contained  more 
or  less ;  and  we  do  not  see  in  the  agreement  of  the  30th,  any 


US  CASES  IN  THE  COURT  OF  APPEALS 

Jones  vs.  Plater.— 1844. 

change  of  intention,  although  the  design  of  the  parties  is  not 
so  clearly  and  decisively  expressed.  The  letters  of  Mr.  Plater 
if  used  in  evidence,  show  nothing  to  the  contrary;  the  land 
sold  was  part  of  a  tract  from  which  other  sales  had  been 
made,  and  a  survey  was  necessary  to  enable  Plater  to  convey, 
as  he  would  be  bound  to  do  on  the  payment  of  the  purchase 
money.  If  he  therefore  joined  in  the  survey,  or  aided  in  it, 
no  inference  against  the  above  interpretation  could  be  deduced 
from  such  conduct. 

The  land  thus  appears  to  have  been  sold  by  estimation  ; 
and  so  much  is  to  be  given  by  the  acre  for  the  quantity, 
more  or  less.  The  quantity  of  acres  was  manifestly  not  con- 
sidered as  of  the  essence  of  the  contract,  neither  warranted 
on  the  one  side,  nor  demanded  on  the  other.  The  deficiency 
in  the  quantity  is  inconsiderable,  and  is  not  of  such  a  character 
as  to  induce  the  belief  of  fraud  or  mistake.  We  cannot  more 
intelligibly  express  our  views,  than  in  the  language  of  Judge 
Story  :  "  There  is  much  good  sense  in  holding  that  the  words 
more  or  less,  or  other  equivalent  words,  used  in  contracts  or 
conveyances,  should  be  construed  to  qualify  the  representa- 
tion of  quantity,  in  such  a  manner,  that  if  made  in  good  faith 
neither  party  should  be  entitled  to  any  relief  on  account  of  a 
deficiency  or  of  a  surplus."  4  Mas.  417.  We  therefore 
think,  this  is  no  case,  for  an  abatement  of  the  purchase 
money. 

The  agreement  in  the  record  would  seem  to  preclude  the 
examination  of  any  other  questions,  than  those  which  we  have 
examined. 

DECREE  AFFIRMED. 


OF  MARYLAND.  129 


Tiffany  vs.  Savage. — 1844. 


HENRY  TIFFANY  vs.  JOHN  SAVAGE. — December  1844. 

Where  a  plaintiff  contracts  with  the  defendant's  agent,  in  an  action  on  the 
contract,  it  is  necessary  to  give  proof  that  the  agent  had  some  authority. 

Although  upon  the  whole  testimony  in  a  cause,  on  both  sides  taken  together, 
the  conclusions  of  a  judge  might  be,  if  acting  as  a  juror,  that  the  verdict 
should  be  for  the  defendant,  yet  if  there  is  evidence  legally  sufficient  to 
warrant  the  jury  in  finding  for  the  plaintiff,  when  left  unaffected  by  the 
defendant's  proof,  the  court  will  not  say  to  the  jury  upon  the  motion  of  the 
defendant,  that  there  is  no  evidence  in  the  cause,  or  that  the  plaintiff's 
cause  is  not  proven. 

APPEAL  from  Washington  County  Court. 

This  was  an  action  of  assumpsit,  for  goods  sold  and  deliv- 
ered. The  defendant  pleaded  non  assumpsit,  &c. 

The  plaintiff  to  support  the  issue  on  his  part  joined,  gave  in 
evidence  the  following  account,  and  affidavit  attached  to  it, 
for  goods,  wares,  and  merchandise,  viz  : 

"Baltimore,  September  22,  1838. — Mr.  John  Savage,  by 
Lewis  M.  Hughes,  bought  of  Henry  Tiffany,  2  pieces  3-4 
check,  81  at  10  $8.10,  &c.,  $260.07."  &c. 

The  plaintiff  by  his  counsel,  then  read  in  evidence  to  the 
jury  certain  interrogatories,  by  him  filed  in  this  cause,  as  fol- 
lows, &c. 

And  the  answers  to  said  interrogatories  by  Lewis  M. 
Hughes,  a  competent  witness,  sworn  and  examined  on  the 
part  of  the  plaintiff,  as  follows : 

1st.  In  the  month  of  September  1838,  I  went  to  Henry 
Tiffany^s  and  bought  the  goods  in  the  name  of  John  Savage. 

2nd.  I  told  the  plaintiff,  the  said  Henry  Tiffany,  that  the 
goods  were  for  John  Savage,  and  had  them  directed  to  his  iron 
works  in  Pennsylvania,  to  the  care  of  his  clerk,  I  think. 

3rd.  I  believe  the  account  as  exhibited  to  me,  is  a  true 
account  of  the  goods  purchased  from  said  Tiffany  for  John 
Savage. 

4th.  I  did  receive  a  letter  from  said  Savage  in  reference  to 
said  goods.  I  decline  attaching  the  said  letter  to  the  deposi- 
tion, because  a  portion  of  it  is  separate  and  distinct  from  the 
17  v.2 


130  CASES  IN  THE  COURT  OF  APPEALS 

Tiffany  vs.  Savage. — 1844. 

transaction,  and  is  private.  The  annexed  statement,  is  a  full, 
perfect,  entire  and  true  copy  of  that  portion  of  the  letter,  in 
the  handwriting  of  said  Savage,  relating  to  this  transaction : 
"Why  not  answer  Longhead's  letter  about  the  number  of 
boxes  forwarded ;  the  bill  of  lading  calls  for  13  boxes, 
marked  Ji.  McCallister,  Huntingdon.  19  bags  of  coffee, 
2  bbls.  sugar,  marked  John  Savage.  There  was,  likewise, 
a  bale  of  goods  marked  Jl.  McCallister^  not  entered  on 
bill  of  lading.  Really,  it  is  too  bad,  to  receive  goods  ship- 
ped, as  you  stated  in  your  letter,  en  the  24th  September,  on. 
the  8th  day  of  October ;  a  voyage  to  the  West  Indies  could  be 
accomplished  before.  Extreme  inattention  was  to  be  found 
somewhere;  three  days  ought  have  sufficed.  No  numbering 
of  boxes,  no  notice  of  the  bill  of  goods,  &c.  You  put  no 
card  on  the  boxes  as  I  requested." 

5th.  I  have  the  letter  in  my  possession,  and  the  answer  to 
the  fourth  interrogatory  is  my  answer  to  this. 

6th.  The  letter  referred  to,  did  acknowledge  the  receipt  of 
the  goods,  with  the  exception  of  one  package,  which  said 
package,  deponent  since  learned,  had  been  received  by  said 
John  Savage. 

7th.  I  did  direct  the  said  plaintiff  to  charge  the  goods  to 
the  said  Savage  at  the  time  they  were  purchased. 

The  defendant  then  read  in  evidence  to  the  jury,  interroga- 
tories by  him  filed  in  said  case,  as  follows,  to  be  propounded 
to  Lewis  Hughes  and  to  Holker  Hughes,  as  witnesses  to  be 
examined  on  the  part  of  the  defendant. 

And  the  answers  to  said  interrogatories  by  /.  Holker  Hughes, 
a  competent  witness,  sworn  and  examined  on  the  part  of  the 
defendant,  as  follows: 

1st.  I  had  purchased  from  John  Savage,  (the  defendant 
above  referred  to,)  a  certain  lot  of  blooms,  and  undertook  to 
procure  for  him,  and  to  pay  for  goods  to  be  purchased  in  Bal- 
timore. I  think  I  gave  instructions  to  Lewis  M.  Hughes  (my 
agent  in  Baltimore,  Maryland,]  to  purchase  such  goods  as 
John  Savage  might  require,  from  any  house  with  which  I  was 
in  the  habit  of  dealing.  The  bills  of  those  goods,  or  copies 


OF  MARYLAND.  131 


Tiffany  vs.  Savage.— 1844. 


of  them,  were  rendered  to  me,  and  duly  charged  to  said  Savage, 
the  defendant,  on  the  "Mont  Alto"  furnace  books,  and  on 
said  books  properly  credited,  among  which  said  bills  so  cred- 
ited and  charged,  was  one  from  Henry  Tiffany  for  the  goods 
above  referred  to  and  received  by  said  Savage.  The  reason  I 
undertook  to  pay  for  the  blooms,  purchased  by  me  from  said 
Savage  in  merchandise,  was,  that  I  had  been  dealing  for  a  num- 
ber of  years  in  Baltimore,  and  had  credit  with  merchants, 
among  whom  was  said  Henry  Tiffany,  and  said  Savage  wanted 
goods,  and  was  willing  to  receive  them  in  exchange  for  the 
blooms  above  referred  to,  he  being  unacquainted  with  the  mer- 
chants of  Baltimore.  The  bill  shown  to  me,  and  attached  to 
interrogatories,  and  bearing  date  the  22nd  September,  1838, 
•which  said  interrogatories  are  signed  by  D.  G.  Yost,  esquire, 
as  counsel  for  plaintiff,  is,  I  think,  the  amount  of  the  bill  ren- 
dered to  rne,  and  credited  on  "Mont  Mto"  furnace  books  to 
the  aforesaid  Henry  Tiffany. 

The  plaintiff  then  read  to  the  jury  in  evidence,  the  answers 
of  the  said  Lewis  M.  Hughes  to  the  above  mentioned  interro- 
gatories, filed  by  the  defendant,  as  follows : 

1st.  I  purchased  the  goods  upon  the  authority  of  a  letter 
from  Holker  Hughes,  who  directed  me  to  have  them  charged 
to  John  Savage. 

2nd.  I  do  not  recollect  of  stating  at  whose  instance  the 
goods  were  purchased  at  the  time  I  ordered  them. 

3rd.  In  answer  to  this  interrogatory,  I  refer  to  ray  answers 
to  fourth,  fifth  and  sixth  interrogatories  on  the  part  of  plaintiff. 

4th.  It  was  in  compliance  with  the  instructions  from  Holker 
Hughes,  referred  to  in  answer  to  first  interrogatory. 

Whereupon  the  defendant,  by  his  counsel,  prayed  the  opin- 
ion and  direction  of  the  court  to  the  jury  from  the  evidence 
above  set  forth,  the  plaintiff  is  not  entitled  to  recover,  because 
it  is  not  proved  by  said  evidence  that  the  said  Lewis  M.  Hughes 
was  the  authorized  agent  of  said  defendant  in  purchasing  said 
goods,  wares  and  merchandise  from  said  plaintiff,  and  forward- 
ing them  to  said  defendant;  which  opinion  and  direction  the 
court  gave.  The  plaintiff  excepted  and  appealed  to  this  court- 


132  CASES  IN  THE  COURT  OF  APPEALS 

Tiffany  »».  Savage. — 1844. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, STONE  and  SEMMES,  J. 

By  D.  G.  YOST,  for  the  appellant,  and 
By  PRICE,  for  the  appellee. 

SEMMES,  J.,  delivered  the  opinion  of  this  court. 

The  question  for  our  decision  in  this  case  is,  whether  upon 
the  facts  proved  on  the  trial  below,  the  court  erred  in  not  leav- 
ing it  to  the  jury  to  decide  the  issue  between  the  parties? 

The  suit  was  brought  by  Henry  Tiffany  against  John  Savage, 
to  recover  the  price  of  a  certain  quantity  of  goods,  which  had 
been  purchased  of  the  plaintiff  by  a  certain  Lewis  M.  Hughes, 
and  forwarded  to  the  defendant.  The  testimony  offered  by 
the  plaintiff,  consisted  of  an  account  with  a  probate  thereto 
annexed,  and  of  the  deposition  of  the  said  Lewis  M.  Hughes, 
which  had  been  taken,  together  with  the  deposition  of  Holker 
Hughes,  the  defendant's  witness,  under  a  commission  issued 
for  that  purpose.  The  account  was  headed  thus, 

"BALTIMORE,  Sept.  22nd,  1838. 
" John  Savage,  by  Lewis  M.  Hughes, 

Bought  of  Henry  Tiffany." 

Then  follows  the  items,  amounting  in  all,  to  $260.07.  To 
this  account  is  annexed  the  affidavits  of  the  plaintiff  and  his 
clerk,  George  Stanard,jr.,  proving  the  correctness  of  the  same, 
in  the  usual  way ;  and  that  it  remained  unpaid.  The  deposi- 
tion of  Lewis  M.  Hughes,  stated  in  substance,  that  he  had  pur- 
chased the  goods  from  the  plaintiff  in  the  name  of  the  defendant, 
and  that  he  told  the  plaintiff  the  goods  were  for  the  defendant. 
That  deponent  had  them  directed  to  the  defendant's  iron  works, 
in  Pennsylvania,  and  that  he  afterwards  received  a  letter  from 
the  defendant,  in  which  he  complained  of  delay  in  the  arrival 
of  the  goods,  and  of  a  want  of  attention  through  some  one's 
fault,  in  his  not  receiving  proper  information  in  respect  to  the 
same  ;  that  said  letter  acknowledged  the  receipt  of  the  goods, 
with  the  exception  of  one  package,  which  deponent  afterwards 
learned  had  been  received  by  the  defendant.  But  it  was  shown 


OF  MARYLAND.  133 


Tiffany  vs.  Savage. — 1844. 


by  the  deposition  of  Holker  Hughes,  the  defendant's  witness, 
that  the  said  Holker  Hughes  had  purchased  of  the  defendant 
a  certain  lot  of  blooms,  and  had  undertaken  to  pay  for  them 
in  merchandise,  to  be  procured  in  Baltimore.  That  he  ac- 
cordingly gave  instructions  to  the  said  Lewis  M.  Hughes, 
(deponent's  agent  in  Baltimore,}  to  purchase  such  goods  as 
the  defendant  might  require,  from  any  bouse  with  which  depo- 
nent was  in  the  habit  of  dealing.  That  the  goods  were  pur- 
chased as  ordered,  and  bills  for  the  same  rendered  to  deponent, 
with  which  the  said  defendant  was  duly  charged,  &c.,  on  the 
books  of  the  "Mont  Jllto"  furnace ;  that  amongst  the  bills 
so  rendered  and  charged,  was  the  bill  of  Tiffany,  the  plaintiff, 
for  the  goods  bought  of  him,  as  aforesaid,  by  the  said  Lewis 
M.  Hughes  ;  and  upon  the  whole  evidence,  the  defendant  by 
his  counsel,  prayed  the  opinion  and  direction  of  the  court  to 
the  jury,  that  the  plaintiff  was  not  entitled  to  recover,  because 
it  was  not  proved  that  Lewis  M.  Hughes  was  the  authorized 
agent  of  said  defendant,  in  purchasing  said  goods  from  the 
plaintiff,  and  forwarding  them  to  the  defendant,  which  opinion 
and  direction  the  court  gave;  and  it  is  contended,  that  the  court 
by  thus  taking  all  the  facts  within  its  own  exclusive  cogni- 
zance, usurped  the  province  of  the  jury,  and  decided  upon 
the  "measure  and  quantity  of  the  proof,"  as  a  question  of  law. 
Let  us  see  whether  the  judgment  of  the  court  below,  is  obnox- 
ious to  the  objections  which  have  been  urged  against  it.  It 
was  certainly  necessary,  in  order  to  entitle  the  plaintiff  to  re- 
cover, to  establish  the  fact  that  the  said  Lewis  M.  Hughes  had 
some  authority,  either  express  or  implied,  from  the  defendant,  to 
act  as  his  agent  in  purchasing  the  goods.  And,  if  the  court 
below  was  right,  in  granting  the  defendant's  prayer,  we  must 
conclude  that  the  evidence  offered  by  the  plaintiff,  taken  by 
itself,  was  legally  insufficient  to  warrant  the  jury  in  rinding  that 
fact.  See  the  case  of  Cole,  vs.  Hebb,  adirfr.  d.  b.  n.  of 
Wm.  Gwyther,  to  be  found  in  7  Gill  fy  John.,  20.  But  we 
are  not  warranted  in  coming  to  such  conclusion,  from  the  tes- 
timony offered  by  the  plaintiff  in  this  cause.  The  account, 
which  we  find  in  the  record,  with  the  joint  affidavits  of  the 


134  CASES  IN  THE  COURT  OF  APPEALS 

Ridenour,  et  aL,  vs.  Keller. — 1844. 

plaintiff,  and  his  clerk,  George  Stanard,  jr.,  thereto  annexed, 
as  aforesaid,  shows  on  its  face  to  be  an  account  by  the  plain- 
tiff, against  the  defendant,  for  goods  sold  and  delivered, 
and  is  the  plaintiff's  identical  cause  of  action  in  this  suit.  This 
account,  it  appears,  was  suffered  to  go  to  the  jury  as  evidence ; 
to  which  is  to  be  added,  on  the  part  of  the  plaintiff,  the  depo- 
sition of  Lewis  M.  Hughes.  Now,  notwithstanding  it  may  be 
true,  that  if  the  whole  testimony,  in  the  cause  on  both  sides,  be 
taken  together,  our  conclusion  might  be,  if  sitting  as  a  jury, 
that  the  verdict  should  be  found  for  the  defendant ;  yet  seeing, 
as  we  do,  that  there  was  evidence  offered  by  the  plaintiff,  le- 
gally sufficient  to  warrant  the  jury  in  finding  the  issue,  which 
it  was  offered  to  sustain ;  testimony,  which  if  left  unaffected  by 
the  defendant's  proof,  would  have  been  conclusive  in  the  plain- 
tiff's favor ;  we  are  of  the  opinion,  that  the  court  below 
erred  in  granting  the  defendant's  prayer. 

We  therefore,  reverse  the  judgment,  and  order  a  procedendo. 

JUDGMENT  REVERSED. 


DAVID  RIDENOUR,  ET  AL.,  vs.  THOMAS  KELLER,  SHERIFF 
OF  WASHINGTON  COUNTY. — December  1844. 

A  sheriff  who  has  made  a  levy  upon  personal  property,  under  a  writ  of  fieri 
facias,  in  good  faith  apprehending  danger  of  loss  by  reason  of  the  con- 
flicting claims  made  upon  it,  is  entitled  to  have  the  title  of  the  claimant 
settled  in  equity,  and  be  protected  in  the  mean  while  by  injunction. 

The  accounts  of  an  administratrix,  making  a  distribution  of  her  intestate's 
estate  in  money,  no  creditor  nor  fraud  appearing,  will  not,  after  a  lapse  of 
sixteen  years,  be  disturbed  in  equity,  where  she  was  guardian  to  her  infant 
children,  and  paid  them  the  interest  on  the  sum  distributed  to  them  during 
her  life,  and  her  successor  in  the  guardianship  received  the  amount  dis. 
tributed,  from  her  personal  representative,  though  she  had  taken  to  her  own 
account,  certain  portions  of  her  intestate's  estate  at  their  appraised  value, 
which  portions  remained  in  esse  at  the  time  of  her  death. 

The  court  will  presume  that  distribution  of  an  intestate's  estate,  had,  after  a 
lapse  of  four  years,  been  made,  where  creditors  were  not  interested ;  no 
charge  of  fraud  made ;  and  it  appearing  that,  all  the  distributees  had  received 
their  proportions  of  the  appraised  value  of  the  estate  in  money,  and  some 
of  them  had  disposed  of  the  same. 


OF  MARYLAND.  135 


Ridenour.  et  al.,  vs.  Keller. — 1844. 


Where  an  administratrix  took  a  portion  of  her  intestate's  estate,  to  her  own 
account,  at  the  appraisement,  and  paid  the  distributees  their  portions  of 
the  estate  in  money,  which  they  kept  for  four  years,  and  alleged  no  fraud ; 
the  distributees,  seeking  to  set  aside  her  settlements,  must  first  do  equity, 
and  return  what  they  have  received,  or  offer  so  to  do. 

APPEAL  from  the  Equity  Side  of  Washington  County  Court. 

The  bill,  in  this  cause,  was  filed  on  the  14th  June  1842, 
by  Thomas  Keller,  sheriff  of  Washington  county,  and  alleged, 
that  a  judgment  was  rendered  in  W.  county  court,  at  March 
term  1839,  against  a  certain  Abraham  Barnes  and  Melchior  B. 
Mason,  in  favor  of  a  certain  David  Ridenour,  for,  &c.,  which 
judgment,  was  afterwards  entered  to  the  use  of  Lot  Ensey 
and  Christian  D.  Fahnestock,  late  partners,  trading  under  the 
name  and  frm  of  Lot  Ensey  and  Company,  who  became,  and 
are  the  equitable  assignees  of  said  judgment.  That  on  the 
25th  day  of  February  1841,  a  fi.  fa.  was  issued  upon  said 
judgment,  directed  to  John  Carr,  esq.,  then  sheriff  of  said 
county,  and  the  same  day  delivered  to  him;  that  afterwards, 
and  before  the  return  day  of  said  execution,  the  said  John  Carr 
levied  upon  a  large  number  of  negroes,  and  other  personal  pro- 
perty, which  was  shown  to  him  by  the  plaintiff,  in  said  exe- 
cution, and  alleged  to  be  the  property  of  the  said  Abraham 
Barnes,  and  Melchior  B.  Mason,  or  one  of  them;  that  a  part 
of  the  personal  property  mentioned  in  said  levy  list,  was 
admitted  to  be  the  property  of  said  Barnes  and  Mason,  or  one 
of  them,  which  part  was  afterwards  sold  by  the  said  Carr,  as 
sheriff,  by  virtue  of  said  fi.  fa.,  a  true  list  of  said  articles,  so 
admitted  and  sold,  is  herewith  exhibited ;  that  afterwards,  on  the 
4th  February  1842,  the  said  John  Carr  departed  this  life,  be- 
fore the  term  for  which  he  had  been  elected  and  commissioned 
as  sheriff,  had  expired;  that  a  few  days  thereafter,  your  orator 
was  duly  commissioned  as  sheriff  of  said  county,  gave  bond, 
accepted  the  office,  and  was,  in  all  respects,  qualified  accord- 
ing to  law.  That  letters  testamentary  on  the  personal  estate 
of  said  Carr,  were,  afterwards,  granted  to  James  Dixon  Ro- 
man, who  accepted  the  trust,  and  within  twenty  days  thereaf- 
ter, delivered  over  to  your  orator  the  said  writ  of  fieri  facias  7 


136  CASES  IN  THE  COURT  OF  APPEALS 

Ridenour,  et  al.,  vs.  Keller. — 1844. 

together  with  the  said  levy  list,  and  the  list  of  appraisement, 
and  all  other  papers  connected  with,  or  relating  to  said  writ; 
which  your  orator  duly  accepted.  Whereupon,  it  became  the 
duty  of  your  orator,  to  proceed  as  the  said  Carr  should  have 
done;  that  the  return  day  of  said  writ  has  been  extended  from 
time  to  time,  at  which  it  was  originally  returnable,  until  now, 
when  it  stands  extended  until  the  first  day  of  Jiugust  next; 
that  the  said  property,  mentioned  in  the  said  levy  list,  except 
the  part  so  sold  as  afoiesaid,  has  been,  and  is  claimed  by  seve- 
ral other  persons,  and  denied  to  be  the  property  of  said  Barnes 
and  Mason,  or  either  of  them:  some  of  said  claimants  claim- 
ing separate  and  distinct  articles,  and  some  of  them  claiming 
in  opposition  to  each  other.  And  your  orator  begs  leave  to 
state  briefly,  the  nature  of  the  several  claims,  so  that  your  ho- 
nors may  see  the  great  difficulty  in  which  your  orator  is  placed, 
and  the  utter  impossibility  of  deciding  to  whom  the  property 
belongs,  and  thus  avoid  danger  and  loss  to  himself,  without 
the  aid  of  this  honorable  court.  Your  orator  is  informed,  and 
believes,  that  most  of  the  articles  mentioned  in  said  levy  list, 
except  those  sold  as  aforesaid,  were  formerly  the  property  of 
John  Thomson  Mason,  of  said  county,  who  departed  this  life 
intestate,  on  or  about  the  month  of  December  1824;  that  let- 
ters of  administration  on  his  personal  estate  were  granted  to 
his  widow,  Elizabeth  Mason;  that  she,  as  administratrix,  took 
possession  of  the  personal  estate  of  said  deceased,  consisting 
of  most  of  the  articles  now  disputed  in  said  levy  list,  together 
with  a  large  amount  of  other  property  of  great  value;  that  she, 
the  said  Elizabeth  Mason,  made  no  distribution  of  the  said 
personal  estate,  at  least,  of  that  portion  contained  in  said  levy 
list,  nor  did  she  make  sale  thereof,  but  charged  herself  with 
the  whole  amount  at  the  appraised  value  thereof,  and  retained 
the  same  in  possession  until  her  death,  which  occurred  in  the 
month  of  May  or  June,  1836.  That  soon  after  her  death,  the 
said  Abraham  Barnes  and  Melchior  B.  Mason,  obtained  letters 
of  administration  on  her  personal  estate,  and  proceeded  to 
make  settlement  thereof;  that  they  distributed  a  part  of  said 
negroes  amongst  the  heirs  of  the  said  Elizabeth,  and  retained 


OF  MARYLAND.  137 


Ridenour,  et  al.,  vs.  Keller. — 1844. 


the  balance  of  said  personal  estate,  charging  themselves  there- 
with, in  their  settlements  with  the  Orphans'  court,  at  the  ap- 
praised value  thereof,  and  retained  possession  of  the  said  pro- 
perty, with  which  they  had  so  charged  themselves.  And  your 
orator  further  states,  that  afterwards,  on  the  9th  January  1839, 
the  said  Abraham  Barnes,  Melchior  B.  Mason,  and  a  certain 
John  Thomson  Mason,  their  brother,  executed  a  certain  deed 
of  trust  to  John  M.  Gordon  and  William  Schley,  esqrs.,  for 
certain  purposes  therein  mentioned,  and  conveyed  to  them  a 
large  number  of  negroes  belonging  to  said  parties  grantors 
respectively,  and  which  deed  also  conveyed  the  negroes  men- 
tioned in  said  levy  list;  that  afterwards,  on  the  15th  May  1839, 
the  said  A.  B.,  M.  B.  M.,  and  J.  T.  M.,  executed  another 
deed  of  trust,  for  other  purposes  therein  particularly  mentioned, 
conveying  the  same  negroes,  by  name,  to  the  said  J.  M.  G. 
and  W.  S.,  trustees,  including  the  said  negroes  on  said  levy 
list;  that  the  said  J.  M.  G.  and  W.  S.,  now  claim  title  to  the 
said  negroes  mentioned  in  said  levy  list,  by  virtue  of  one  or 
both  the  said  deeds  of  trust,  aforesaid,  alleging,  that  the  said 
negroes  were  the  property  of  said  Barnes  and  M.  B.  Mason, 
or  one  of  them;  and  the  title  thereto  was  by  said  deeds  of 
trust  vested  in  them,  the  said  trustees,  for  a  purpose  therein 
specified,  which,  has  not  yet  been  accomplished  or  fulfilled; 
and  the  said  J.  M.  G.  and  W.  S.,  have  forbidden  your  orator, 
at  his  peril,  to  sell  any  one  of  said  negroes;  and  your  orator 
further  states,  that  afterwards,  on  the  llth  October  1839,  afore- 
said, the  said  Ji.  B.,  and  M.  B.,  his  wife,  M.  B.  M.,  and  J. 
T.  M.,  executed  a  certain  other  deed  of  trust  to  William  Price, 
esq.,  and  David  G.  Yost,  as  trustees,  conveying  a  large  amount 
of  property,  real,  personal,  and  mixed,  including  all  the  other 
negroes  mentioned  in  said  levy  list,  and  also  many  other  arti- 
cles therein,  in  said  list  enumerated,  to  the  said  Price  and 
Yost,  as  trustees,  for  certain  purposes  therein  mentioned.  And 
your  orator  states,  that  the  said  W.  P.  and  D.  G.  Y.,  as  trus- 
tees, claim  a  large  portion  of  the  property  mentioned  in  said 
levy  list,  under  and  by  virtue  of  the  said  deed  of  trust,  insist- 
ing, that  they  have  the  legal  title  to  the  same,  and  have  for- 
18  v.2 


138  CASES  IN  THE  COURT  OF  APPEALS 

Rich-Hour,  et  al.,  vs.  Keller. — 1844. 

bidden  your  orator  to  sell  any  part  of  said  property  which  is 
contained  in  said  deed  of  trust;  that  afterwards,  on  the  12tb 
November  1841,  letters  of  administration,  de  bonis  non,  on  the 
personal  estate  of  the  said  /.  T.  M.,  deceased,  were  granttd 
to  one  John  Winter,  who  accepted  the  trust;  and  now,  he,  the 
said  John  Winter,  as  administrator  de  bonis  non,  claims  all  the 
property,  or  nearly  all,  mentioned  in  said  levy  list,  except  the 
part  sold  as  aforesaid,  as  the  property  of  the  said  J.  T.  M., 
which  was  not  administered  by  the  former  administrator,  Eli- 
zabeth Mason,  in  her  life  time,  and  insists,  that  the  said  Eliza- 
beth, by  charging  herself  with  the  said  property,  and  having 
made  no  sale  or  distribution,  did  not  vest  the  title  to  said  pro- 
perty in  herself,  but  that  it  remained  in  her  hands,  as  adminis- 
tratrix, until  the  time  of  her  death;  and  therefore,  the  said  JL. 
B.  and  M.  B.  M.,  as  her  administrators,  had  no  right  to,  or 
control  over,  the  said  property;  and,  that  the  said  John  Win- 
ter, as  administrator  de  bonis  non,  is  solely  entitled  to  the  same, 
for  the  purpose  of  sale  or  distribution,  according  to  law;  and 
he  claims  the  same  in  opposition  to  all  others,  arid  has  forbid- 
den your  orator,  at  his  peril,  to  remove  or  sell  any  part  of  that, 
which  originally  belonged  to  his  said  estate.  And  your  orator 
further  states,  that  some  time  in  the  month  of  November  1841, 
the  letters  of  said  Barnes  and  Mason,  as  administrators  of  the 
said  Elizabeth  Mason,  were  duly  revoked,  and  that  on  the  30th 
day  of  the  same  month,  letters  of  administration,  de  bonis  non, 
upon  said  estate,  were  granted  to  the  said  John  Winter;  that 
a  part,  or  few  of  said  articles  mentioned  in  said  levy  list,  are 
represented  as  having  belonged  to  the  said  Elizabeth,  in  her 
own  right,  and  that  the  mode  of  settlement  adopted  by  her 
said  administrators  was  illegal  and  void,  and  did  not  vest  the 
title  to  such  property  in  them;  and  insists,  that  he,  as  admin- 
istrator de  bonis  non,  is  entitled  to  the  same,  as  the  unadmin- 
stered  estate  of  the  said  Elizabeth  Mason,  deceased ;  and  now 
claims  the  same,  and  has  forbidden  your  orator  to  sell  the  articles 
thus  claimed,  which  your  orator  cannot  precisely  enumerate. 
And  your  orator  further  states,  that  the  said  David  Ridenovr, 
the  legal  plaintiff,  and  Lot  Ensey,  the  surviving  partner  of  the 


OF  MARYLAND.  139 


Ridenour,  et  al.,  vs.  Keller. — 1844. 


said  L.  E.  and  Co.,  insist,  that  the  said  property  is  the  pro- 
perty of  the  said  Barnes  and  Mason,  or  one  of  them,  and 
require  your  orator  to  sell  it  as  such,  and  by  virtue  of  the  said 
writ  of  fi.fa.,  and  threaten  your  orator  with  a  suit  for  dama- 
ges, if  he  returns  said  writ,  nulla  bona.  And  your  orator  fur- 
ther states,  that  the  former  sheriff,  the  said  John  Carr,  in  his 
life  time,  summoned  a  jury  of  inquest,  who  were  duly  empan- 
nelled  and  sworn,  to  try  and  determine  the  title  to  said  pro- 
perty; that  a  trial  was  had,  wherein  each  of  the  said  several 
claimants  were  represented  by  counsel,  except  the  said  Gor- 
don and  Schley,  trustees  as  aforesaid,  and  the  said  jury  ren- 
dered a  verdict,  which  is  herewith  exhibited;  but  your  orator 
is  advised,  that  such  verdict  is,  in  law,  no  protection  to  him 
against  the  said  several  suits  threatened,  and  which  may  be 
brought  by  the  said  parties.  And  your  orator  is  advised  and 
believes,  that  he  cannot,  safely  to  himself,  either  sell  the  said 
property,  or  return  the  said  writ,  nulla  bona,  but  that  the  said 
several  claimants  ought  to  interplead  together,  touching  their 
right  to  said  property,  in  order  that  your  orator  may  know  to 
whom  the  property  belongs,  and  whether  the  said  Ji.  J5.,  and 
M.  B.  M..OY  either  of  them,  have  any,  and  what  interest  therein, 
which  your  orator  can  sell  by  virtue  of  said  execution;  and 
that  the  said  several  claimants  ought,  in  the  meantime,  to  be 
restrained  by  the  order  or  injunction  of  this  honorable  court, 
from  commencing  or  prosecuting  any  action  at  law  against 
your  orator,  touching  the  premises;  and  especially,  that  the 
said  plaintiff,  in  the  said  writ  of  fieri  facias,  to  wit,  the  said 
D.  R.,  and  the  said  L.  E.  and  Co.,  should  be  restrained  from 
any  proceedings  to  compel  your  orator  to  return  said  writ  of 
fi.fa..  In  tender  consideration  whereof,  &c.  Prayer  in  con- 
formity to  the  bill. 

The  defendants  answered  this  bill.  A  variety  of  accounts, 
and  the  deeds  of  trust,  &c.,  were  filed  as  proof,  but  the  nature 
of  the  defence  made,  and  the  facts  established,  sufficiently 
appear  in  the  opinions  of  Washington  county  court  and  of  this 
court. 


140  CASES  IN  THE  COURT  UK  APPEALS 

Ridenour,  et  al.,  vs.  Keller. — 1844. 

At  March  term,  1843,  Washington  county  court,  (T. 
BUCHANAN,  A.  J.,)  delivered  the  following  opinion: 

The  facts,  as  they  appear  from  the  admissions  in  the  answers, 
or  from  the  exhibits  filed  therewith,  appear  to  be  these. 

John  Thomson  Mason  died  in  1824,  leaving  a  large  personal 
estate;  his  widow,  Elizabeth  Mason,  administered  on  his  estate, 
and  returned  an  inventory  and  appraisement;  she  afterwards 
settled  an  account,  charging  herself  with  all  the  property  con- 
tained in  the  inventoiy  at  its  appraised  value,  and  of  debts; 
and  distributed  the  cash  balance  amongst  the  heirs.  There 
was  no  sale  or  distribution  of  the  property,  but  the  widow 
retained  the  possession  of  it  until  her  death,  in  July  1836. 

After  her  death,  letters  of  administration,  on  her  estate, 
were  granted  to  Ji.  Barnes  and  M.  B.  Mason,  who,  returned 
an  inventory  and  appraisement  of  her  estate,  which  consisted, 
almost,  exclusively  of  the  same  properly  which  she  had  charg- 
ed herself  with,  as  administrator  of  her  husband.  The  said 
Barnes  and  Mason,  made  no  sale  or  distribution  of  property, 
but  charged  themselves  with  the  whole  amount,  at  the  ap- 
praised value,  and  after  taking  credit  for  the  payment  of  debts, 
distributed  the  balance  of  value  amongst  the  heirs;  and  after- 
wards, as  a  mode  of  paying  said  distributive  shares,  they  dis- 
tributed certain  of  the  negroes  to  the  several  heirs,  at  a  value 
fixed  upon  by  appraisers,  approved  by  the  Orphans'  court,  for 
that  purpose.  The  said  Barnes  and  Mason,  retaining  all  the 
other  property,  and  a  large  number  of  the  negroes;  and  after 
several  deeds  of  trust,  mortgaging  the  same  for  payment  of 
certain  debts. 

The  negroes,  and  other  property  have  been  levied  upon  by 
the  sheriff  as  the  property  of  said  Barnes  and  Mason,  under 
an  execution  against  them,  at  the  suit  of  D.  Ridenour,  use  of 
Lot  Ensey  and  Company. 

It  further  appears,  some  of  the  heirs  were  minors,  and  the 
youngest  did  not  attain  the  age  of  twenty-one  years,  until 
before  the  said  levy  was  made;  and,  that  soon  afterwards,  in 
November  1841,  letters  of  administration,  d.  b.  n.,  on  the  estate 
of  John  Thomson  Mason,  were  granted  to  John  Winter,  one  of 


OF  MARYLAND.  141 


Ridenour,  et  al ,  vs.  Keller. — 1844. 


the  defendants,  and  that  soon  afterwards,  letters  of  ad.  d.  b.  n., 
on  the  estate  of  Elizabeth  Mason,  were  granted  to  the  same 
person;  and  he  claims  the  greater  part  of  the  property,  as  the 
unadministered  property  of  John  T.  Mason,  and  a  small  part 
as  the  property  of  Elizabeth  Mason. 

The  plaintiffs,  in  the  execution,  claim  it  as  the  property  of 
Baines  and  Mason. 

William  Schley  and  John  M.  Gordon,  claim  the  negroes 
under  the  deeds  of  trust,  exhibited. 

And  Win.  Price  and  D.  G.  Yost,  claim  many  of  the  negroes 
under  the  deed  of  trust  to  them. 

The  question  is,  to  whom  does  the  property  belong? 

It  is  the  opinion  of  the  court,  that  Mrs.  Mason  had  no  right 
to  charge  herself  with  the  personal  estate  of  her  husband,  Jno. 
Thomson  Mason,  at  the  appraised  value;  and,  that  by  so  doing, 
she  acquired  no  title  to  the  property;  but,  she  held  the  same 
as  administratrix,  and,  at  her  death  it  remained  as  the  unad- 
ministered estate  of  her  husband,  John  T.  Mason;  and  that 
Barnes  and  Mason,  as  her  administrators,  had  no  right  to  the 
same,  and  ought  not  to  have  included  it  in  their  inventory; 
after  her  death  no  legal  title  could  be  claimed,  except  by  an 
administrator  de  bonis  non,  on  his  estate;  and  it  follows,  that 
all  the  distributions  and  settlements  of  the  said  property  by  her 
administrators  were  wholly  void;  and  John  Winter,  as  admin- 
istrator, is  now  entitled  to  all  the  articles  embraced  in  the  levy 
which  were  the  property  of  Jno.  Thomson  Mason,  deceased. 
But  Elizabeth  Mason,  appears  to  have  been  possessed  of  a 
small  personal  estate  at  the  time  of  her  death,  which  she  had 
in  her  own  right.  But  the  administration,  on  her  estate,  seems 
to  have  been  irregular  and  void  in  the  same  particular;  they 
had  no  right  to  charge  themselves  with  the  appraised  value  of 
the  property,  and  acquired  no  title  thereby,  and  therefore,  all 
those  articles  in  the  said  levy,  which  belonged  to  her,  are  pro- 
perly claimed  by  her  administrator  de  bonis  non.  There  is 
some  difficulty  about  the  negro  man  John  Robinson:  it  is 
alleged,  that  he  belonged  to  Elizabeth  Mason,  but  was  not 
returned  in  the  inventory  of  her  estate,  through  error  or  mis- 


142  <'A8RS  IN  TUP,  COURT  OF  APPKAL* 

Ri<lenour,  et  al.,  vs.  Keller. — 1844. 

take,  whilst  the  creditors  allege,  he  belonged  to  Barnes.  It 
is  not  necessary  to  decide  this  question,  because  he  is  included 
in  the  deeds  of  trust  to  Gordon  and  Schley,  the  purposes  of 
•which  have  not  been  accomplished;  and,  also,  in  the  deed  to 
Price  and  Yost;  and,  therefore,  even  if  he  was  the  property  of 
Barnes,  those  grantees  are  now  owners;  and  the  sheriff  had 
no  right  to  levy  upon  him.  There  is,  also,  some  difficulty  about 
the  silver  plate,  which  D.  Ridenour  alleges  to  have  been  the 
property  of  Richard  Barnes,  and  bequeathed  to  Abraham  Barnes 
by  his  will,  an  extract  of  which  is  exhibited.  John  Thomson 
Mason  was  the  executor  of  that  will,  and  there  is  no  evidence 
in  the  cause  to  show,  that  he  ever  assented  to  the  bequest,  nor 
that  Abraham  Barnes  ever  claimed  it.  The  court  is  of  opinion, 
that  the  only  mode  in  which  title  to  that  plate  can  be  acquired, 
is  through  an  administrator  de  bonis  new,  with  the  will  annex- 
ed, on  the  estate  of  Richard  Barnes.  If  these  principles  be 
correct,  and  it  is  believed  they  are  so,  it  follows,  that  Jibra- 
braham  Barnes  and  Melchior  B.  Mason,  had  no  title  to  any  of 
the  articles  now  in  dispute  in  this  cause;  and,  that  the  sheriff 
had  no  right  to  take  the  same,  under  the  execution  against 
them. 

It  is  thereupon,  this  llth  day  of  April  1843,  by  the  court 
adjudged,  ordered,  and  decreed,  that  Thomas  Keller,  release 
all  the  property  mentioned  in  his  bill  of  interpleader;  and  it 
is  further  adjudged,  ordered,  and  decreed,  that  the  defendants 
David  Ridenour  and  Lot  Ensey,  and  their  agents  and  attor- 
neys, be,  and  they  are  hereby  perpetually  enjoined,  from  insti- 
tuting any  proceeding  against  said  sheriff,  for  releasing  said 
property. 

The  defendants,  D.  £.,  L.  E.,  J.  M.  G.,  W.  S.,  W.  P., 
D.  G.  F,  and  J.  W.,  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 

By  W.  SCHLEY  and  WEISEL  for  the  appellants,  and 
By  ROMAN  and  MC-MAHON  for  the  appellees. 


OF  MARYLAND.  143 


Ridenour,  et  al.,  vs.  Keller. — 1844. 


SPENCE,  J.,  delivered  the  opinion  of  this  court. 

All  objections  to  this  bill,  by  the  agreement  of  the  solicitors 
engaged  in  the  argument,  having  been  waived,  we  shall  pro- 
ceed to  the  consideration  of  the  points  submitted  in  the  argu- 
ment for  the  decision  of  this  court. 

The  controling  question  in  this  case  is  presented  by  the  first 
point,  namely,  the  legality  and  effect  of  the  course  pursued  by 
Elizabeth  Mason,  administratrix  of  John  T.  Mason,  and  that 
of  Jlbraham  Barnes  and  Melchior  B.  Mason,  administrators  of 
Elizabeth  Mason,  in  the  settlement  of  the  estates  of  their  re- 
spective intestates,  before  the  Orphans  court  of  Washington 
county. 

On  the  part  of  the  appellee,  it  is  insisted,  that  the  distribu- 
tions made  in  the  Orphans  court  in  both  of  these  estates,  is 
legal  and  binding,  so  far  as  all  the  distributees  are  concerned; 
and  on  the  other  side,  it  is  insisted  by  the  appellants  solicitors, 
that  these  distributions  are  illegal  and  void. 

First,  as  to  the  administration  and  settlement  of  John  T. 
Mason's  estate,  by  his  administratrix,  Elizabeth  Mason. 

This  estate  appears  to  have  been  closed,  final  account 
passed,  and  distribution  made  in  the  Orphans  court,  on  the 
25th  of  August  1827,  and  each  distributee's  share  thereof 
made  out  in  dollars  and  cents. 

The  record  discloses  the  fact,  that  Elizabeth  Mason,  the 
administratrix,  was,  by  the  orphans  court,  appointed  guardian 
to  the  distributees,  who  were  minors  at  the  time.  Her  accounts 
passed  by  the  orphans  court,  as  guardian,  show  that  she  charg- 
ed herself,  as  guardian,  with  the  sum  allotted  in  the  distribu- 
tion to  each  one  of  her  wards,  and  annually  thereafter,  with 
the  interest  on  the  sum  thus  charged.  It  appears,  also,  from 
the  record,  that  John  Dutton,  who,  after  the  death  of  Mrs. 
Mason,  was  appointed  guardian  to  such  of  the  children  and 
distributees  of  John  T.  Mason,  as  were  then  minors,  adopted 
all  her  acts,  and  received  from  the  estate  of  Mrs.  Mason,  the 
sum  thus  allowed  them  in  the  distribution.  There  is  no  fraud 
alleged  in  the  settlement  and  distribution  of  the  estate  of  /. 
T.  Mason.  There  is  no  allegation  of  outstanding  unpaid 


144  CASES  IN  THE  COURT  OF  APPEALS 

Riclenour,  et  al.,  vs.  Keller. — 1844. 

debts  against  the  administratrix,  qua  administratrix.  Her  final 
account  was  passed,  and  distribution  made  in  the  Orphans  court 
on  the  25th  day  of  August  1825.  Letters  of  administration  de 
bonis  non  on  the  estate  of  John  T.  Mason,  were  granted  to 
John  Winter,  on  the  12th  day  of  November  1841. 

This  statement  of  facts  in  the  record  shews  conclusively, 
that,  from  the  settlement  of  her  administration  account,  and. 
distribution  of  her  intestate's  estate  in  the  Orphans  court, 
more  than  sixteen  years  had  elapsed,  before  letters  of  ad- 
ministration, de  bonis  non,  on  John  T.  Mason's  estate,  were 
granted  to  John  Winter ;  and,  after  all  the  distributees  who 
were  of  age,  and  those  who  were  minors  by  their  guardians, 
had  received  their  distributive  shares. 

Letters  of  administration  on  the  estate  of  Mrs.  Mason,  were 
granted  by  the  Orphans  Court  of  Washington  county,  to 
Abraham  Barnes  and  Melchior  B.  Mason,  shortly  after  her 
death,  which  occurred  in  July,  1836. 

Mrs.  Mason's  administrators,  returned  an  inventory  of  her 
personal  estate,  and  included  all  the  slaves  involved  in  this 
controversy,  except  John  Robinson,  being  the  slaves  which 
were  returned  by  Mrs.  Mason,  as  administratrix  of  John  T. 
Mason  ;  with  the  exception  of  those,  born  subsequently  to  the 
date  of  her  inventory.  The  administrators  on  the  estate  of 
Mrs.  Mason  paid  off  her  creditors,  and  passed  a  final  account 
in  the  Orphans  Court:  that  court  made  a  distribution  of  the 
surplus  of  the  estate,  and  appointed  two  persons  to  value  and 
distribute  the  slaves  among  the  legal  representatives  of  Eliza- 
beth Mason,  deceased ;  who  accordingly  did  make  distribu- 
tion ;  and  returned  a  statement  thereof  to  the  Orphans  Court. 
The  record  does  not  allege  any  demand  of  any  outstanding, 
unpaid  creditor,  of  either  of  the  intestates,  John  T.  Mason,  or 
Elizabeth  Mason,  against  their  administrators  de  bonis  non, 
qua,  administrators.  The  record  discloses  the  fact,  that  the 
distributees  of  John  T.  Mason  and  Elizabeth  Mason,  (except- 
ing the  widow  of  /.  T.  Mason,")  are  the  same  persons  ;  that 
each  of  those  distributees  have  received  their  portion,  (those 
of  full  age  themselves,  the  minors,  by  their  guardians,)  of  their 
estate. 


OF  MARYLAND.  145 


Ridenour.  et  al.,  vs.  Keller. — 1844. 


We  are  called  upon,  under  this  state  of  facts,  to  say,  whether 
the  court  below  decided  correctly,  that  these  distributions, 
thus  made,  under  the  sanction  of  the  Orphans  Court  of 
Washington  county,  are  null  and  void  ?  We  think  not.  It 
might  readily  be  presumed,  from  the  lapse  of  time,  the  receipt 
by  all,  and  disposition  of  the  estate  by  some,  of  the  distribu- 
tees;  the  acquiescence  of  the  distributees,  in  the  one  case,  of 
more  than  sixteen  years,  and  in  the  other  more  than  four 
years ;  no  creditor  of  the  intestates  making  demand  of  pay- 
ment ;  and  no  charge  of  fraud ;  that  distribution  had  been 
made,  even  if  it  did  not  appear  from  the  record.  Vide.  Al- 
lender,  adm?r  of  Wyse  vs.  Riston,  3  Gill  &f  John.  86. 

We  are  of  the  opinion,  from  all  the  facts  which  the  record 
in  this  case  reveals,  that  the  distribution  made  in  the  Orphans 
Court  of  John  T.  Mason's  estate,  by  his  administrators,  was 
so  made  with  the  knowledge,  consent,  and  full  approbation  of 
all  the  parties,  legally  interested  therein.  The  administratrix 
was  the  mother,  the  natural  guardian,  and  guardian  in  fact, 
of  all  of  the  distributees  After  the  death  of  Mrs.  Mason, 
Mr.  Button,  who  succeeded  her  in  the  guardianship  of  these, 
her  wards,  manifestly  approved  this  distribution  thus  made, 
by  adopting  her  acts  as  guardian ;  and  receiving  from  her 
administrators  the  sums  apportioned  to  each  of  her  wards. 

Our  conclusion,  drawn  from  these  facts,  is  placed  beyond 
a  doubt  by  the  lapse  of  time  when  this  distribution  was  made, 
before  any  attempt  is  made  to  question  its  integrity.  This 
transaction  slept  for  more  than  sixteen  years,  in  as  profound 
silence  as  its  author ;  and,  when  an  effort  is  made,  to  drag  it 
up  from  its  long  repose,  it  is  not  by  any  charge  of  deceit,  or 
unfairness,  or  fraud,  but  that  the  letter  of  the  law  had  not  been 
fully  observed,  performed,  and  kept. 

Again,  this  effort  is  not  being  now  made  by  the  demand  of 
any  unpaid,  inexorable,  creditor  of  .7.  T.  Mason  ;  we  hear  of 
no  such  demand.  If,  then,  it  be  at  the  instance  of  the  distri- 
butees, through  the  instrumentality  of  the  administrator  de 
bonis  non,  they  come  with  ill  grace,  too  late,  and  not  in  the 
proper  form.  If  the  guardian  had  acted  unfaithfully,  or  un- 
19  v.2 


146  CASES  IN  THE  COURT  OF  APPEALS 

Ridenour,  et  al.,  vs.  Keller. — 1844. 

fairly,  in  the  discharge  of  her  trust,  their  redress  was  clear 
and  ample  at  law,  on  her  bond.  It  is  too  late,  after  such  a 
train  of  facts  and  circumstances  as  this  record  developes,  in 
which  they  have  participated,  and  to  which,  by  their  sanction, 
they  have  given  validity,  to  call  them  into  question  now. 

The  distributees  have  not  only  received  their  distributive 
portion  of  the  estate  of  J.  T.  Mason,  but  they  have  received 
the  whole  of  the  estate  of  his  administratrix,  their  mother; 
whose  estate  consisted,  almost  entirely,  of  what  she  derived 
from  her  intestate,  dead  husband. 

But,  to  place  this  question  in  a  still  stronger  point  of  view, 
let  us  inquire  what  would  be  the  effect  of  setting  aside  those 
proceedings  in  the  Orphans  Court?  There  is  no  offer  on  the 
part  of  those  who  have  received  this  estate,  to  account  for  it ; 
and  in  fact  the  record  shows,  that  some  of  them  have  placed 
a  large  part  of  this  estate  beyond  their  control,  even  if  they 
were  willing  to  do  so  ;  and,  they,  who  seek  equity,  must  first 
do  equity. 

There  is  less  doubt,  or  difficulty,  as  to  the  settlement  and 
distribution  of  Mrs.  E.  Mason's  estate;  and  we  think  its 
legality  beyond  question.  But,  if  we  did  doubt  the  legality 
of  this  distribution  in  this  estate,  we  do  not  see  how  this  pro- 
ceeding could  affect  it. 

That  the  question  in  relation  to  the  plate,  and  horses,  and 
carriage,  could  not  be  affected  by  the  distribution  of  the  estates 
of  Mr.  and  Mrs.  Mason,  we  think  too  clear  to  require  an 
argument.  These  articles  not  having  belonged  to  either  of 
these  intestates  estates,  at  the  lime  of  their  death,  from  any 
thing  which  appears  on  the  record. 

The  plate,  was  a  legacy,  by  the  will  of  Richard  Barnes  to 
J.  T.  Mason,  for  his  life ;  after  which,  it  was  bequeathed  to 
A.  Barnes.  Vide.  3  Gill  &  John.,  86. 

Mrs.  Mason  appears  to  have  acquired  the  slave,  John  Ro- 
binson, after  the  death  of  her  husband  ;  and  he  can,  by  no 
possibility  be  subject  to  the  execution  in  the  hands  of  the 
sheriff,  in  this  case.  As  John  Robinson  must  necessarily  be 
the  property  of  the  grantees,  in  the  deeds  from  Abraham 


OF  MARYLAND.  147 


Prout,  et  al.,  vs.  Berry  and  wife. — 1844. 


Barnes  and  others  to  Gordon  and  Schley,  and  the  deed  to 
Price  and  others  ;  or,  otherwise,  the  property  of  the  adminis- 
trator, de  bonis  non,  of  Elizabeth  Mason.  But,  it  is  the 
opinion  of  this  court,  that  the  property  passed  by  the  deeds, 
from  Abraham  Barnes  and  others,  to  the  grantees  therein  named. 
The  injunction,  issued  in  the  case,  must,  therefore,  be  dis- 
solved, as  to  the  said  plate,  carriage,  and  horses ;  and,  as  to 
all  the  other  property  levied  upon,  by  said  Keller,  except  the 
negroes  or  slaves  :  and  must  be  made  perpetual,  as  to  all  the 
negroes  or  slaves  levied  upon  by  him. 

DECREE  REVERSED  IN  PART. 


JONATHAN   PROUT,    et   al.,   vs.    Z.    BERRY,    AND    WIFE. — 
December,  1844. 

The  Legislature  have  no  power  in  any  given  determination  of  the  Court  of 
Appeals,  to  declare  what  would  be  the  rights  of  the  parties.  That  is  a  ju- 
dicial power  which  the  Legislature  does  not  possess. 

Where  the  Court  of  Chancery,  in  1838,  directed  certain  parties  to  a  cause, 
to  pay  their  proportion  of  certain  annuities,  and  the  persons  supposed  to 
be  aggrieved  had  lost  their  right  of  appeal  by  lapse  of  time,  and  in  1843 
obtained  an  act,  by  which  this  Court  was  authorised  and  required  to  take 
cognizance  of,  and  hear  and  determine  the  said  cause  "in  manner  and  to 
every  effect  as  if  such  transcript  had  been  in  due  time  transmitted."  HELD, 
that  this  court  was  bound  to  presume,  that  in  compliance  with  the  order 
of  1838,  the  appellees'  proportion  of  the  annuity  had  been  paid,  and  this 
court  could  not  determine  the  case  in  manner,  and  to  every  effect,  as  if 
the  appeal  had  been  taken  in  due  time. 

A  legislative  act  authorising  an  appeal  must  either  be  capable  of  being  com- 
plied with  by  the  court,  and  the  terms  of  the  grant  followed,  or  the  act 
must  be  unconstitutional. 

The  legislature  may  pass  laws  conferring  on  this  court  the  right  to  hear 
appeals  in  special  cases,  after  the  time  allowed  by  the  general  law  had 
passed  by ;  but  such  a  law,  to  have  efficacy,  must  leave  this  court  untram- 
melled, as  to  the  mode  or  manner  of  administering  justice. 

APPEAL  from  the  Court  of  Chancery. 

(See  this  case  reported  in  12  Gill  8f  John.  285.     Decem- 
ber 1841.) 


148  CASES  IN  THE  COURT  OF  APPEALS 

Prout  et  al.,  vs   Berry  and  wife. — 1844. 

At  this  court,  the  appellees  moved  to  dismiss  the  appeal, 
which  had  been  brought  up  under  the  act  of  1843,  chap.  343, 
viz  : 

11  Jin  act  for  the  relief  of  Jonathan  Prout  and  others. 

WHEREAS,  Jonathan  Prout,  and  Jinn,  his  wife,  Thomas  T. 
Gantt,  Benjamin  S.  Gantt  and  Levi  Gantt,  have  represented 
to  the  General  Assembly,  that  they  heretofore  entered  an  ap- 
peal to  the  Court  of  Appeals,  against  Zachariah  Berry,  jun'r. 
and  wife,  in  a  case  in  chancery  between  Sarah  S.  Garrett, 
William  0.  Sprigg  and  others,  complainants,  and  Christopher 
L.  Gantt  and  Benjamin  L.  Gantt  and  others,  defendants,  and 
that  the  transcript  of  the  proceedings  was  not  transmitted  to 
the  Court  of  Appeals,  by  the  late  register  in  Chancery,  within 
the  time  limited  by  law,  by  reason  whereof  the  said  cause  was 
excluded  from  a  hearing  before  the  said  court : — Therefore, 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
the  register  of  the  Court  of  Chancery  be,  and  he  is  hereby  autho- 
rized and  directed,  to  make  out  and  transmit  to  the  Court  of 
Appeals  a  transcript  of  the  proceedings  in  the  said  cause,  and 
the  said  court  are  hereby  authorized  and  required  to  take  cog- 
nizance of  and  hear  and  determine  the  cause,  in  manner,  and 
to  every  effect,  as  if  such  transcript  had  been  in  due  time  trans- 
mitted on  the  said  appeal  to  the  Court  of  Appeals,  according 
to  the  acts  of  Assembly,  in  such  cases  made  and  provided ; 
provided,  said  transcript  be  transmitted  within  sixty  days  from 
the  day  of  the  passage  of  this  act,  and  the  said  cause  shall 
stand  for  hearing  at  the  June  term,  eighteen  hundred  and  forty- 
four,  of  said  Court  of  Appeals." 

The  motion  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 

By  PRATT  and  ALEXANDER  for  the  motion,  and 
By  TUCK  and  RANDALL,  contra. 

ARCHER,  J.,  delivered  the  opinion  of  this  court. 
It  appears  by  the  recital  to  the  act  of  assembly  of  1842,  ch. 
168,  that  this  case  was  originally  dismissed  by  this  court,  be- 


OF  MARYLAND.  149 


Prout  et  al.,  0s.  Berry  and  wife. — 1844. 


cause  the  late  register  in  chancery  had  omitted  to  transmit  a 
transcript  of  the  proceedings  to  this  court,  within  the  time 
prescribed  by  law,  and  without  any  neglect  on  the  part  of  the 
appellants.  By  that  law,  the  case  was  directed  to  be  reinsta- 
ted, and  brought  up  by  regular  continuances,  and  to  be  heard 
at  June  term,  1843. 

The  case  was  again  dismissed  by  this  court,  because  it  was 
of  opinion,  that  the  legislature  possessed  no  power  in  any 
given  determination  of  the  Court  of  Appeals,  to  declare  what 
would  be  the  rights  of  the  parties  :  for  however  consistent 
with  justice  and  equity  such  a  declaration  may  have  been, 
the  legislature  could  exercise  no  judicial  power. 

The  case  is  brought  up  again,  under  the  act  of  1843,  ch. 
343,  and  a  motion  has,  again,  been  made  to  dismiss  the 
appeal.  The  ground  of  the  application  is,  that  the  court  "are 
authorised  and  required  to  take  cognizance  of,  and  to  hear 
and  determine  the  cause  in  manner,  and  to  every  effect,  as  if 
such  transcript  had  been  in  due  time  transmitted,  on  the  said 
appeal,  to  the  Court  of  Appeals,  according  to  the  acts  of  As- 
sembly, in  such  case  made  and  provided;"  and,  it  is  insisted, 
that  this  mandate  of  the  law  cannot  be  obeyed  by  this  court, 
without  the  most  flagrant  injustice.  That  the  result  of  a 
hearing  and  decision  of  this  case,  to  every  effect  as  if  the 
record  had  been  transmitted  in  time  might,  and  we  are  bound 
to  suppose  would,  have  the  effect  of  divesting  vested  rights. 

The  order  of  the  chancellor  directs  the  devisees,  among 
others,  the  appellees,  to  pay  their  proportion  of  certain  annui- 
ties left  by  the  testator,  Levi  L.  Gant.  This  order  was 
passed  by  the  chancellor,  on  the  3rd  of  November  1838.  The 
court  are  bound  to  presume,  that  in  compliance  with  this 
order  the  appellees  proportion  of  such  annuities  has  been 
regularly  paid.  What  then  would  be  the  effect  of  a  reversal 
of  the  chancellor's  decree,  in  pursuance  of  the  terms  of  the 
act?  This  court  are  to  determine  the  case,  in  manner,  and  to 
every  effect,  as  if  the  appeal  had  been  taken  within  the  time 
prescribed  by  law. 


150  CASES  IN  THE  COURT  OF  APPEALS 

Byer  vs.  Etnyre  and  Besorc. — 1844. 


If  it  be  the  duty  of  the  court  under  this  act,  and  we  think  it 
would  be  if  the  act  is  to  govern,  to  determine  this  case  to 
every  effect  as  if  the  appeal  had  been  in  due  time,  we  could  in 
no  manner  notice  any  payments  made  by  the  appellee  in  pur- 
suance of  the  chancellor's  order,  and  the  appellees  must  sus- 
tain a  loss  co-extensive  with  payments  by  them  made.  A  law, 
attended  with  such  consequences,  could  not  be  constitution- 
ally passed  by  the  legislature. 

Whatever  might  be  said,  were  the  question  a  new  one  as 
to  the  power  on  the  part  of  the  legislature  to  confer  on  this 
court  the  right  to  hear  appeals  in  special  cases,  after  the  time 
allowed  by  the  general  law  for  an  appeal  had  passed  by,  it  is 
now  too  late  to  question  it.  But  such  a  law,  to  have  efficacy, 
must  leave  us  untrammelled  as  to  the  mode  or  manner  of 
administering  justice. 

A  special  law  has  been  referred  to,  with  similar  phraseology 
with  the  one  now  under  consideration,  under  which  this  court 
acted.  There  was  not  however,  there,  as  here,  any  thing  in 
the  character  of  the  proceedings,  which  either  indicated,  that 
by  entertaining  the  appeal  the  rights  of  any  would  be  injuri- 
ously affected  ;  nor,  in  fact,  were  such  rights  in  any  manner 
thereby  affected. 

APPEAL  DISMISSED. 


FREDERICK  BYER  vs.  S.  ETNYRE  AND  C.  H.  S.  BESORE. — 
December,  1844. 

There  is  no  precise  form  of  return  prescribed  by  law,  for  returns  of  levies 
made  by  constables  to  writs  of  fieri  facias.  The  term  levied  in  such  re- 
turns imports  a  seizure,  by  common  usage. 

Seizure  under  an  execution  is  a  matter  in  pais,  which  may  be  proved  byparol 
evidence. 

It  is  not  the  constable's  return  which  gives  title  to  a  purchaser  under  a  fieri 
facias,  but  the  seizure  and  sale  under  the  writ.  The  return  is  evidence, 
but  not  the  only  admissible  proof  of  those  facts. 

A  statement  of  the  seizure  and  sale  in  the  receipt  for  the  purchase  money 
given  to  the  vendee,  would  be  as  effectual  to  transfer  the  title  to  the  per- 


OF  MARYLAND.  151 


Byer  vs.  Etnyre  and  Besore,— 1844. 


sonil  property  described  in  it,  as  the  most  formal  return,  endorsed  on,  or 
attached  to  the  writ. 

The  seizure,  sale,  and  payment  of  the  purchase  money,  may  also  be  estab- 
tablished  by  oral  testimony,  and  be  equally  valid  for  the  purchaser  as  a 
return. 

The  act  of  1729,  ch.  8,  sec.  5,  requires  that  a  deed  for  personal  property, 
when  the  grantor  remains  in  possession,  shall  be  acknowledged  before  one 
justice  of  the  county,  where  the  grantor  resides.  Where  the  acknowledge- 
ment omitted  to  state  the  official  character  of  the  officer  before  whom  it 
was  made,  it  may  be  proved  by  the  admissions  of  the  parties. 

That  act  prescribes  no  form  of  acknowledgment ;  it  does  not  require  the 
authority  of  the  justice  to  take  it,  to  appear  on  the  face  of  his  certificate, 
nor  is  it  necessary  to  state  that  the  justice  was  a  resident  of  the  county 
where  he  acted. 

Where  the  justice,  taking  the  acknowledgment  of  a  deed  under  the  act  of 
1729,  ch.  8,  sec.  5,  does  not  reside  in  the  county  where  it  was  taken,  the 
instrument  is  as  inoperative,  as  if  the  person  taking  the  acknowledgment 
were  not  a  justice. 

If  an  acknowledgment  contrary  to  the  fact,  state  the  residence  of  the  party 
to  be  in  a  different  county  from  that  of  the  justice,  the  error  may  be  proved, 
and  the  instrument  established  under  the  act  of  1729. 

A  false  statement  in  the  certificate  of  the  justice  may  be  disproved,  and  an 
instrument  thus  invalidated. 

The  case  of  Conelly  vs.  Bowie,  6  Harr.  and  John.  141  cited  and  explained. 

Under  the  act  of  1729,  ch.  8,  sec.  5,  the  recording  of  a  bill  of  sale  of  per- 
sonal property  within  twenty  days,  in  the  records  of  the  same  county  is  as 
necessary  to  its  validity,  as  is,  its  acknowledgment.  • 

Where  the  bill  of  exceptions  contain  no  evidence  of  such  recording,  the  usual 
certificate  thereof  by  the  county  clerk  not  appearing  by  the  record  to  have 
been  indorsed  on  the  bill  of  sale,  it  is  not  admissible  in  evidence  in  an  action 
at  Jaw  between  the  creditors  of  the  grantor,  and  a  defendant  claiming  to 
rely  on  the  grantor's  title. 

The  statement  "at  the  request  of  Z.,"  (the  grantor)  "the  following  bill  of 
sale  was  recorded"  preceding  a  bill  of  sale  in  a  bill  of  exceptions,  where 
the  admissibility  of  the  deed  as  evidence  was  objected  to,  not  signed  by  any 
person,  is  no  proof  of  the  recording  of  such  instrument. 

M.  and  L.  rented  a  farm  from  Z.,  and  agreed  to  give  him  one  half  of  all  the 
grain  raised  on  it  as  a  rent  for  the  same,  and  on  the  8th  May  1841,  they 
executed  a  bill  of  sale  to  him  for  a  variety  of  chattels,  and  also  for  all  their 
"portion  of  grain  now  growing  on  his,  the  said  Z's  farm,  and  all  that 
should  be  sown  or  planted,  each  succeeding  year."  This  instrument  was 
not  proved  to  have  been  recorded  under  the  act  of  1729 ;  and  contained 
a  warranty  of  title  by  the  grantors,  and  a  declaration  of  a  delivery  of  part 
of  the  goods,  &c.,  for  the  whole.  In  the  fall  of  1841,  M.  and  L.  sowed  a 
crop  of  svheat ;  and  on  the  23rd  February  1842,  agreed  with  Z.  that  he 
should  offer  the  grain  in  the  ground  for  sale  for  his  own  use,  and  credit  them 


152  CASES  IN  THE  COURT  OF  APPEALS 

Byer  rs.  Etnyre  and  Besore. — 1844. 

with  its  proceeds.  No  sale  having  in  fact  been  made,  E.  and  J3.,  judg. 
ment  creditors  of  M.  and  L .,  who  were  still  in  the  occupancy  of  the  land, 
on  the  26th  February  1842,  levied  a  fieri  facias  on  the  growing  grain  as 
the  property  of  M.  and  L.',  and  sold  the  same  on  the  9th  March,  under  the 
writ.  The  purchaser  agreed  with  E.  and  B.  that  his  liability  should  depend 
on  the  question  whether  the  crop  belonged,  of  right,  to  M.  and  L.  It  ap- 
peared B.  had  a  knowledge  of  the  bill  of  sale  of  May  1841,  but  not  until 
after  the  grantors  thereof  became  indebted  to  E,  and  B.,  though  before 
they  issued  their  writ  of  fi.  fa.  In  an  action  by  E.  and  B.,  against  the 
purchaser  of  the  grain,  to  recover  the  price  thereof,  the  County  court  refused 
to  instruct  the  jury  upon  the  prayer  of  the  defendant,  that  the  bill  of  sale 
though  invalid  as  a  grant,  yet,  as  a  covenant  between  the  parties,  was  effec- 
tual, and  would  entitle  Z.  to  hold  the  grain,  if  the  jury  should  believe  that 
he  had  paid  the  consideration  mentioned  therein,  and  the  plaintiffs  had  no- 
tice of  its  existence  anterior  to  issuing  their  writs,  and  Z.  had  permission 
before  their  issue  to  sell  the  grain  for  his  own  use.  Upon  appeal  by  the 
defendant,  the  exception  to  such  refusal  was  abandoned : 

Where  permission  was  given  by  a  tenant  to  his  landlord  to  sell  grain  growing 
in  the  ground,  for  his  own  use,  on  the  premises,  and  in  view  of  the  grain, 
and  the  landlord  preceded  to  advertise  such  grain  for  sale,  whether  such 
facts  amounted  to  a  delivery  of  the  grain,  is  a  question  dependent  upon  the 
intention  of  the  parties,  to  be  passed  on  by  the  jury. 

When,  before  a  court  can  grant  a  prayer  it  must  assume  the  non-existence  of 
all  the  testimony  not  enumerated  in  it,  and  thus  exclude  material  evidence 
from  the  consideration  of  the  jury,  or  assume  facts  of  which  no  proof  had 
been  offered,  to  grant  it  would  be  to  transcend  its  jurisdiction,  and  exert  a 
power  which  belonged  exclusively  to  the  jury,  or  which  could  not  be  exer- 
cised in  the  particular  case,  either  by  the  court,  or  jury. 

APPEAL  from  Washington  County  Court. 

This  was  an  action  of  assumpsit,  commenced  on  the  12th 
October  1842,  by  the  appellees,  partners,  trading  under  the 
firm  of  Etnyre  and  Besore,  against  the  appellant.  The  plain- 
tiff's declared  that  the  defendant,  being  indebted  to  them,  in 
the  sum  of,  &c.,  for  a  certain  crop  of  wheat,  in  the  ground,  of 
the  plaintiff's,  before  that  time  bargained  and  sold,  by  the 
plaintiff  to  the  defendants ;  for  matters  properly  chargeable  in 
account ;  and  for  an  account  stated  between  the  parties. 
The  account  filed  with  the  declaration,  was  as  follows: 
"Frederick  Byer  bought  of  Etnyre  and  Besore, — 1842, 
March  9.  To  55  acres  of  wheat,  in  the  ground,  at  constable's 
sale,  a  $4.40,  $242.— Interest  from  9th  March  1842." 


OF  MARYLAND.  153 


Byer  vs.  Etnyre  and  Besore. — 1844. 


The  defendants  pleaded  non  assumpsit,  on  which  issue  was 
joined. 

IST  EXCEPTION.  At.  the  trial  of  this  cause,  it  was  admitted, 
that  the  sum  of  money  for  which  the  suit  is  brought,  was  for 
the  purchase,  at  constable's  sale,  of  certain  grain,  which  was 
raised  by  James  P.  Mayhue  and  George  Lowman,  on  a  farm 
which  they  had  rented,  and  held  as  tenants  of  Frederick  Zie- 
gler.  That  by  the  terms  of  the  said  writing,  the  said  May- 
hue  and  Lowman,  were  to  give  one  half  of  all  the  grain 
raised  on  the  farm,  as  rent  for  the  same.  That  the  sum  of 
money,  for  which  this  suit  is  brought,  was  for  the  purchase 
money  of  the  tenants'  share  of  the  crop,  sown  in  the  fall  of 
1841,  and  reaped  in  the  summer  of  1842,  and  that  at  the  time 
of  the  said  purchase,  by  the  defendant,  it  was  understood  and 
agreed  between  the  plaintiffs  and  the  defendant,  that  the  lia- 
bility of  the  defendant  for  the  said  purchase  money,  should 
depend  upon  the  question,  whether  the  said  tenants'  share  of 
the  said  crop  belonged,  of  right,  to  the  said  Mayhue  and 
Lowman,  at  the  time  of  the  said  sale,  so  far  as  the  rights  of 
the  plaintiffs,  as  creditors  of  said  Mayhue  and  Lowman,  as 
hereinafter  set  forth,  were  to  attach  or  not  on  the  same,  or 
to  the  said  Frederick  Ziegler. 

The  plaintiffs  then,  to  support  the  issue  on  their  part  joined, 
offered  in  evidence  to  the  jury  the  following  judgments,  viz: 

Etnyre  and  Besore  vs.  George  Lowman,  22nd  February  1842. 

Same  vs.  J.  P.  Mayhue  and  George  Lowman,  25th  Februa- 
ry 1842. 

Same  against  same,  25th  February  1842. 

And  afi.fa.  issue,  25th  February  1842,  on  the  judgment 
against  George  Lowman,  endorsed: 

"Levied  on  the  interest  of  fifty-six  acres  of  grain,  in  the 
ground,  as  the  property  of  J.  P.  M.  and  G.  £.,  to  satisfy 
the  within  claim;  also,  one  stack  of  hay.  Jl.  G.  Snyder, 
constable.  February  26th,  1842.  Settled  in  full  by  sale, 
March  9th  1842." 

20         v.2 


154  CASES  IN  THE  COURT  OF  APPEALS 

Byer  vs.  Etnyre  and  Besore, — 1844. 

Writs  of  fi.fu-  were  issued  and  similarly  returned  on  the 
two  other  judgments.  And  then  proved,  by  jJbraham  G.  Sny- 
der,  the  constable,  thai  in  virtue  of  said^.  fas.,  which  were 
placed  in  his  hands  by  the  plaintiffs,  he  seized  the  grain  grow- 
ing on  the  said  farm,  so  rented,  to  which  said  Mayhue  and 
Lowman  were  entitled  under  their  said  lease  from  Ziegler,  as 
aforesaid,  and  sold  the  same  to  the  defendant,  who  became  the 
purchaser,  under  the  understanding  and  agreement  aforesaid; 
and  which  said  Ji.  fas.  were  delivered  to  the  officer  to  whom 
directed,  on  the  evening  of  the  day  on  which  they  were  issued 
and  bear  date,  a  little  before  sundown.  To  the  admissibility 
of  which  said  writs  and  endorsements  the  defendant,  by  his 
counsel,  objected,  for  the  following  reasons: 

1.  That  the  endorsements  on  the  said  writs  do  not  sufficiently 
show  a  levy  upon,  or  seizure  of  the  grain  in  question. 

2.  That  the  said  endorsements  do  not  sufficiently  show  a 
sale  of  the  said  grain,  and  that  they  do  not  show  the  return 
of  the  officer,  of  what  was  done  under  the  said  writs.     But 
the  court  (BUCHANAN,  A.  J.,)  overruled  the  said  objections, 
and  permitted  the  evidence  to  go  to  the  jury.     To  which  opin- 
ion of  the  court,  overruling  the  said  objections,  the  defendant 
excepted. 

2ND  EXCEPTION.  The  defendant,  then,  after  the  admissions 
and  testimony  detailed  in  the  first  bill  of  exceptions,  and  which 
he  prays  may  be  taken  and  considered  in  this,  his  second  bill 
of  exceptions,  to  support  the  issue  on  his  part  joined,  offered 
in  evidence  the  following  instrument  of  writing: 

"At  the  request  of  Frederick  Ziegler,  the  following  bill  of 
sale  was  recorded,  May  24th,  1841. 

Know  all  men  by  these  presents,  that  we,  James  P.  May- 
hue  and  George  Lowman,  of  Washington  county,  in  the  state  of 
Maryland,  for  and  in  consideration  of  the  sura  of  fourteen 
hundred  and  thirty-seven  dollars  and  ffty  cents,  current 
money,  to  us  in  hand  paid  by  Frederick  Zeigler  of  Washington 
county,  in  the  said  state,  at  and  before  the  sealing  and  deliv- 
ering of  these  presents,  the  receipt  whereof,  we,  the  said  J. 
P.  M.  and  G.  L.,  do  hereby  acknowledge,  have  granted,  bar- 


OP  MARYLAND.  155 


Byer  vs.  Etnyro  and  Besoro. — 1844. 


gained  and  sold,  and  by  these  presents  do  grant,  &c.,  unto 
the  said  F.  Z,  his,  &c.,  all  the  goods,  household  stuff,  imple- 
ments and  furniture,  particularly  mentioned,  expressed  and 
contained  in  the  schedule,  hereinafter  particularly  mentioned, 
that  is  to  say  :  one  gray  horse,  &c.,  and  also,  all  our  portion 
of  grain  now  growing  on  his,  the  said  Z's  farm  ;  also,  all  that 
shall  be  sowed  or  planted  each  succeeding  year.  To  have  and 
to  hold,  all  and  singular,  the  said,  &c.,  the  premises  above 
bargained  and  sold,  or  mentioned  and  intended  so  to  be,  to 
the  said  F.  Z,  his,  &c.  And  we,  the  said  J.  P.  M.  and  G,  L., 
for  ourselves,  &c.,  all  and  singular,  the  said  goods,  &c.,  unto 
the  said  jP.  Z,  his  &c.,  against  us,  the  said  /.  P.  M.,  G.  L., 
our,  &c.,  and  against  all  and  every  other  person  or  persons, 
whatsoever,  shall  and  will  warrant  and  forever  defend  by  these 
presents,  of  all  and  singular,  which  said  goods,  &c.  we,  the 
said  J.  P.  M.  and  G.  L.,  have  put  the  said  F.  Z.,  in  full  pos- 
session, by  delivering  to  him,  the  said  F.  Z,  one  table  spoon, 
at  the  sealing  and  delivering  of  these  presents,  in  the  name  of 
the  whole  premises,  hereby  bargained  and  sold,  or  mentioned 
and  intended  to  be  so,  unto  him,  the  said  F.  Z.,  as  aforesaid. 
In  v/itness  whereof,  we  have  hereunto  set  our  hands  and  affixed 
our  seals,  the  8th  day  of  May,  1841. 

JAMES  P.  MAYHUE,  (Seal.) 
GEORGE  LOWMAN,    (SEAL.) 

State  of  Maryland,  Washington  county,  to  wit :  on  this  8th 
day  of  May  1841,  personally  appears  James  P.  Mayhue  and 
George  Lawman,  and  acknowledge  the  aforegoing  instrument 
of  writing  to  be  their  act  and  deed,  according  to  the  act  of 
Assembly  in  such  case  made  and  provided.  Acknowledged 
before  Wm.  Webb." 

And  also  offered  to  prove,  from  the  records  of  Washington 
county,  that  Wm.  Webb,  before  whom  said  instrument  of 
writing  was  acknowledged,  was,  at  the  time  thereof,  a  justice 
of  the  peace  of  the  state  of  Maryland,  in  and  for  said  county, 
duly  commissioned  and  qualified,  (but  this  being  admitted  by 
the  plaintiffs,  the  proof  thereof  as  offered  was  waived,)  to  the 
reading  of  which  instrument  of  writing  to  the  jury,  the  plain- 


156  CASES  IN  THE  COURT  OF  APPEALS 

Byer  vs.  Etnyre  and  Besore. — 1844. 

tiffs  objected,  upon  the  ground  that  the  said  William  Webb 
does  not  upon  the  face  of  the  said  acknowledgment,  make 
any  mention  of  his  official  character,  or  state  himself  to  be  a 
justice  of  the  peace  ;  which  objection  the  court,  (T.  BUCHA- 
NAN, A.  J.,)  sustained,  upon  the  ground  aforesaid,  and  refused 
to  permit  the  said  instrument  of  writing  to  be  read  to  the 
jury ;  to  which  opinion  and  refusal  of  the  court,  the  defen- 
dant excepted. 

SRD  EXCEPTION.  The  defendant  then,  in  addition  to  the 
facts  mentioned  in  the  first  and  second  bill  of  exceptions, 
which  he  prays  may  be  considered  as  incorporated  in  this,  his 
third  bill  of  exceptions,  offered  in  evidence  to  the  jury  by 
James  P.  Mayhue,  one  of  the  persons  who  had  rented  the 
farm  from  the  said  F.  Z,  as  aforesaid,  and  also  one  of  the 
defendants  in  the  said  writs  of  fieri  facias,  that  on  or  about 
the  23rd  of  February  1842,  it  was  agreed  between  himself  and 
the  said  F.  Z.,  that  the  said  Z.  should  offer  the  grain  in  the 
ground,  the  proceeds  of  which  is  the  subject  matter  of  this 
suit,  together  with  the  other  personal  property,  in  said  instru- 
ment of  writing  mentioned  for  sale,  for  his  own  use ;  and  that 
the  proceeds  of  the  said  sale  should  be  applied  to  the  payment 
of  the  debt  due  the  said  Ziegler,  and  for  the  security  of  which 
the  said  bill  of  sale  was  executed.  The  debt  so  due  to  the 
said  Ziegler,  was  then  about  eleven  hundred  dollars.  That 
at  the  time  of  its  being  so  agreed,  that  the  said  Z.  should  sell 
the  grain  and  personal  property,  it  was  also  understood,  that 
if  the  said  grain  did  not  bring  a  fair  price,  of  which  said  M. 
and  L.  were  to  be  the  judges  and  determine,  that  then  the  said 
Z.  should  proceed  to  cut  the  said  grain  ;  and  after  paying  him- 
self out  of  the  said  grain  for  the  cutting  and  securing  the 
same,  he  should  give  the  said  M.  and  L.  credit  for  the  resi- 
due on  the  said  debt.  That  the  said  M.  made  the  arrange- 
ment with  the  said  Z.,  to  save  trouble.  That  considering  the 
said  instrument  good  and  valid,  as  vesting  a  title  in  the  said 
Z.  to  the  said  grain,  he  agreed  to  let  him  sell  the  said  grain 
in  his  own  name,  as  it  would  be  better  and  save  the  trouble 
of  selling  it  themselves,  and  then  assigning  the  notes  to  the 


OF  MARYLAND.  157 


Byer  va.  Etnyre  and  Besore. — 1844. 


said  Z.  That  the  said  Z.,  the  next  day  after  said  agreement, 
or  perhaps  the  day  following  that,  did  advertise  the  said  grain 
and  personal  property  for  sale.  That  the  printed  hand  bill, 
here  shown  by  the  witness,  is  one  of  the  advertisements 
printed,  and  put  up  at  public  places  in  the  neighborhood,  in 
relation  to  the  said  sale.  The  said  advertisement  here  fol- 
lows, to  wit :  &c. 

The  said  M.  further  proved,  that  he  was  in  possession  of 
said  farm  on  which  said  grain  was  then  growing,  under  the 
said  lease  from  said  Z.,  at  the  time  he  made  said  arrange- 
ment for  said  Z.  to  sell  said  grain  as  aforesaid,  and  continued 
in  possession  of  the  same  up  to  the  1st  of  April  1842,  when 
his  lease  expired.  The  said  Z.  was  occupying  a  house  on  said 
farm  at  the  time,  and  which  he  had  occupied  from  the  com- 
mencement of  said  lease.  The  defendant  further  proved  by 
the  said  /.  P.  M.,  that  before  the  said  jP.  Z.  offered  the  said 
grain  and  personal  property  for  sale,  as  aforesaid,  in  a  conver- 
sation which  he  had  with  the  said  Charles  H.  S.  Besore,  one 
of  the  plaintiffs,  the  said  Besore  mentioned  that  he  had 
a  knowledge  of  the  said  bill  of  sale  or  instrument  of  writing, 
so  executed  by  the  said  M.  and  Z,.,  to  the  said  F.  Z.  But 
that  he  had  no  such  knowledge,  until  after  the  indebtedness  of 
said  Mayhue  and  Lowman  to  said  Besore  had  taken  place, 
though  before  he  issued  the  said  fi.  fas.  That  the  said  Ziegler 
in  pursuance  of  said  notice  by  hand  bill,  sold  said  personal 
property,  except  said  grain  ;  that  the  sale  thereof  amounted  to 
four  hundred  dollars  and  upwards. 

The  defendant  thereupon  prayed  the  court  to  direct  the  jury, 
that  the  said  instrument  of  writing  though  it  may  not  be 
valid  as  a  grant,  yet  that  as  a  covenant  between  the  parties,  it 
is  good  and  effectual,  and  will  entitle  the  said  Frederick  Zeig- 
ler  to  hold  the  said  grain  under  such  contract,  if  the  jury 
believe  from  the  evidence,  that  the  said  Zeigler  had  paid  the 
consideration  mentioned  in  the  said  contract,  and  especially, 
if  the  plaintiffs  had  notice  of  the  existence  of  such  contract, 
anterior  to  the  issuing  of  their  said  writs  of  fieri  facias >  &c. ; 
that  the  said  Ziegler  had  permission,  before  the  issuing  of  said 


158  CASES  IN  THE  COURT  OF  APPEALS 

Byer  vs,  Etnyre  and  Bcsore. — 1844. 

writs,  from  the  said  Mayhue  and  Lowman,  to  sell  the  same  for 
his  own  use  ;  which  opinion  and  direction  the  court  refused  to 
give.  To  which  refusal  of  the  court,  the  defendant  excepted. 

4xH  EXCEPTION.  The  defendant,  upon  the  same  facts 
stated  in  the  former  bills  of  exceptions,  prayed  the  court  to 
direct  the  jury,  if  they  believe  from  the  evidence  that  the  said 
Frederick  Ziegler  had  permission  and  authority  from  the  said 
Mayhue  and  Lowman,  before  the  delivery  of  the  said  writs  of 
fieri  facias  to  the  constable,  to  proceed  and  sell  said  grain  in 
the  ground  for  his  own  use,  and  that  this  permission  and 
authority  were  given  on  the  premises,  and  in  view  of  the  said 
grain  in  the  ground;  and  that  said  Ziegler  did,  thereupon, 
proceed  to  advertise  the  said  grain  for  sale,  before  said  writs 
of  fieri  facias  were  so  delivered,  that  the  said  facts  amounted 
to  a  delivery  of  said  grain  to  the  said  Ziegler,  and  the  plain- 
tiffs are  not  entitled  to  recover ;  which  opinion  and  direction 
the  court  refused  to  give.  To  which  refusal  of  the  court  the 
defendant  excepted. 

The  verdict  and  judgment  being  against  the  defendant,  he 
prosecuted  the  present  appeal. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 

By  WEISEL  and  PRICE  for  the  appellant,  and 
By  MASON  and  F.  A.  SCHLEY  for  the  appellees. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

The  County  court,  we  think,  committed  no  error  in  over- 
ruling the  appellant's  objections  to  the  admissibility  of  the 
writs  of  fieri  facias,  and  the  endorsements  thereon.  The  first 
of  which  is,  "that  the  endorsements  on  the  said  writs  do  not 
sufficiently  shew  a  levy  upon,  or  seizure  of  the  grain  in  ques- 
tion." There  is  no  precise  form  of  return  to  such  executions 
prescribed  by  law ;  and  that  made  by  the  constable  on  this 
occasion,  as  far  as  this  objection  is  concerned,  is  in  accordance 
with  the  returns  usually  made  by  such  officers ;  and  by  com- 
mon usage  and  acceptation,  the  term  "levied"  when  thus 


OF  MARYLAND.  159 


Byer  vs.  Etnyre  and  Besore. — 1844. 


used  by  constables,  imports  a  seizure.  But  suppose  the  facts 
were  otherwise ;  seizure  is  a  matter  in  pais,  which  may  be 
proved  by  parol  evidence,  and  was  so  proved  by  the  consta- 
ble who  made  the  same,  prior  to  any  objection  being  taken  to 
the  testimony.  It  is  not  the  constable's  return  which  gives 
title  to  a  purchaser  under  a  fieri  facias ;  but  the  seizure  and 
sale  under  the  writ.  And  the  constable's  return  is  evidence, 
but  not  the  only  admissible  evidence  of  those  facts ;  a  state- 
ment thereof,  in  the  receipt  for  the  purchase  money  given  to  the 
vendee,  would  be  as  effectual  to  transfer  the  title  to  personal 
property,  as  the  most  formal  return  indorsed  on,  or  attached 
to  the  writ;  and  if  there  had  been  no  return  made,  nor  receipt 
given  by  the  constable,  and  the  seizure,  sale,  and  payment  of 
the  purchase  money  were  established  by  oral  testimony  only, 
the  title  of  the  purchaser  would  be  equally  good. 

The  remarks  made  upon  the  first  objection  are,  for  the  most 
part,  equally  applicable  to  the  second.  The  parol  evidence 
of  the  constable  obviating  the  defects,  imputed  to  the  returns 
made  to  the  writs  of  fieri  facias. 

The  only  question  raised  on  the  second  bill  of  exceptions 
in  the  court  below,  and  on  which  the  court  decided  was, 
whether  a  bill  of  sale,  under  the  act  of  1729,  chap.  8,  which 
enacts,  "that  from  and  after  the  end  of  this  session  of  Assem- 
bly, no  goods  or  chattels,  whereof  the  vendor,  mortgagor  or 
donor  shall  remain  in  possession,  shall  pass,  alter  or  change, 
or  any  property  thereof  be  transferred  to  any  purchaser,  morta- 
gee,  or  donee,  unless  the  same  be  by  writing,  and  acknow- 
ledged before  one  provincial  justice,  or  one  justice  of  the 
county  where  such  seller,  mortgagor,  or  donor  shall  reside,  and 
be  within  twenty  days  recorded  in  the  records  of  the  same 
county,"  was  admissible  in  evidence,  where  the  magistrate, 
who  took  the  acknowledgment,  omitted  to  state  therein  the 
official  character  in  which  he  acted  ;  and  where  it  was  admit- 
ted by  the  parties  in  the  cause,  that  the  person  before  whom 
the  acknowledgment  was  made,  was  at  the  time  thereof,  a 
justice  of  the  peace  of  the  State  of  Maryland^  in  and  for 
Washington  county,  duly  commissioned  and  qualified  as  such, 


160  CASES  IN  THE  COURT  OK  APPEALS 

Bjer  vs.  Etnyre  and  Besore. — 1844. 

The  only  ground  assigned  for  the  rejection  of  the  testimony 
offered,  was,  that  the  person  who  took  the  acknowledgment 
did  not,  upon  its  face,  make  any  mention  of  his  official  cha- 
racter, or  state  himself  to  be  a  justice  of  the  peace.  Which 
objection  to  the  evidence  offered,  the  bill  of  exceptions  states, 
that  "the  court  sustained,  upon  the  ground  aforesaid,  and 
refused  to  permit  the  said  instrument  of  writing  to  be  read  to 
the  jury.""  The  act  of  1729,  prescribes  no  form  of  acknow- 
ledgment to  be  taken  by  the  justice;  much  less  does  it  require 
that  the  authority  of  the  justice  to  take  the  acknowledgment, 
should  appear  upon  its  face.  With  equal,  if  not  greater  pro- 
priety, might  it  be  insisted,  that  where  the  acknowledgment 
is  made  before  a  justice  of  the  county,  it  should  state,  that  the 
person  was  a  resident  thereof,  who  made  the  acknowledgment. 
Without  such  residence,  the  writing  acknowledged  is  as 
inoperative  and  void,  as  if  the  person  taking  the  acknowledg- 
ment were  not  a  justice  of  the  county.  And  yet,  perhaps,  not 
an  instrument  of  the  kind  can  be  found,  where  the  acknow- 
ledgment contains  any  such  assertion  of  residence.  And 
should  the  acknowledgment,  contrary  to  the  fact,  state  the 
residence  of  the  party  to  be  in  a  different  county  from  that  of 
the  justice,  the  erroneous  statement  might  be  disproved,  and 
the  instrument  acknowledged,  established  in  its  operation 
under  the  act  of  1729  :  although  upon  the  face  of  the  acknow- 
ledgment it  appeared  to  be  a  nullity.  See  the  case  of  Git- 
tings  vs.  Hall,  1  Harr.  fy  John.,  18;  and  so,  if  the  acknow- 
ledgment had  stated  the  person  taking  it  to  be  a  justice  of  the 
county,  when,  in  truth,  he  was  not  so,  the  falsehood  might  be 
proved,  and  the  instrument  invalidated.  And,  a  fortiori,  may 
the  defect  be  supplied,  by  testimony  aliunde,  where  the 
acknowledgment  omits  to  state  the  official  character  of  him, 
by  whom  it  was  taken.  And  the  proof  offered,  even  if  not 
admitted  to  be  true,  as  was  the  case  on  this  occasion,  was 
much  stronger  and  more  conclusive  evidence  of  the  fact  of 
official  authority,  than  would  have  been  the  mere  statement 
thereof,  in  the  body  of  the  acknowledgment.  This  view  of 
the  case  we  think  fully  sustained  by  the  opinion  of  this  court 


OF  MARYLAND.  161 


Bjer  vs.  Etnyre  and  Besore. — 1844. 


in  Connelly  vs.  Bowie,  6  Harr.  8f  John.  141,  where,  in  an 
action  of  ejectment,  a  certified  copy  of  a  deed  was  admitted 
as  evidence,  by  the  county  court,  although  the  acknowledg- 
ment thereto,  neither  stated  the  official  character  of  the  persons 
taking  it  nor  the  county  in  which  it  was  taken.  This  court, 
in  reviewing  the  judgment  of  the  county  court,  say  :  "The 
official  character  of  the  persons  before  whom  the  supposed 
acknowledgment  was  taken,  does  not  appear  on  the  face  of  it, 
and  the  paper  is  equally  silent  as  to  the  county  in  which  the 
acknowledgment  was  taken;  nor  is  there  any  proof  in  the 
record  showing,  that  John  Ball  and  Turner  Wootton  were  justi- 
ces of  the  peace  ;  or  that  the  acknowledgment  was  made  in  the 
county,  in  which  the  lands  were  then  situate  ;"  and  for  these 
reasons  reverse  the  judgment  of  the  county  court.  Is  not  the 
inference  irresistible,  that  had  there  been  proof  in  the  record, 
dehors  the  certified  copy  produced,  shewing  that  John  Ball  and 
Turner  Wootton,  (the  persons  before  whom  the  acknowledg- 
ments were  taken,)  were  justices  of  the  peace  of,  and  that  the 
acknowledgment  was  made  in,  the  county  in  which  the  lands 
were  situate,  the  judgment  of  the  county  court  would  not 
have  been  reversed,  for  the  defects  appearing  on  the  face  of 
the  deed ;  the  copy  whereof  had  been  admitted  by  the  county 
court,  in  evidence  to  the  jury? 

But,  although  the  county  court,  in  the  case  before  us  erred, 
in  refusing  to  permit  for  the  reason  assigned,  the  instrument 
of  writing  to  be  read  to  the  jury,  as  offered  by  the  appellant, 
yet  its  refusal  was  justified  upon  a  ground  which  does  not 
appear  to  have  been  brought  to  its  notice,  but  which  this 
court  are  not  at  liberty  to  overlook.  By  the  act  of  1729,  chap- 
ter 8,  under  the  provisions  of  which  the  bill  of  sale  before  us 
was  taken  ;  its  being  recorded  within  twenty  days  "in  the 
records  of  the  same  county,"  is  as  necessary  to  its  validity, 
as  is  its  acknowledgment.  The  record  contains  no  evidence 
of  such  recording:  the  usual  certificate  thereof,  by  the  county 
clerk,  not  appearing  by  the  record  to  have  been  indorsed  on 
the  bill  of  sale.  It  is  true,  that  preceding  the  bill  of  sale 
there  is  the  following  written  statement,  viz  :  "At  the  request 
21  v.2 


162  CASES  IN  THE  COURT  OF  APPEALS 

Byer  vs.  Etnyre  and  Besore, — 1844. 

of  Frederick  Zeigler  the  following  bill  of  sale  was  recorded, 
May  24th,  1841."  But  this  statement  is  signed  by  nobody  ; 
and  where  or  by  whom  recorded,  non  apparet. 

The  third  bill  of  exceptions  having  been  abandoned,  this 
court  are  relieved  from  its  consideration. 

We  concur  with  the  county  court,  in  its  rejection  of  the 
appellant's  prayer,  in  the  fourth  bill  of  exceptions,  that  if  the 
jury  "believe  from  the  evidence,  that  the  said  Frederick  Zeig- 
ler had  permission  and  authority  from  the  said  Mayhue  and 
Lowman,  before  the  delivery  of  the  said  writs  of  fieri  facias, 
to  the  constable,  to  proceed  and  sell  said  grain  in  the  ground, 
for  his  own  use,  and  that  the  permission  and  authority  were 
given  on  the  premises,  and  in  view  of  the  said  grain 
in  the  ground ;  and  that  the  said  Zeigler,  did  thereupon, 
proceed  to  advertise  the  said  grain  for  sale,  before  said 
writs  of  fieri  facias  were  so  delivered,  that  the  said  facts 
amounted  to  a  delivery  of  the  said  grain  to  the  said  Zeig- 
ler, and  the  plaintiffs  are  not  entitled  to  recover.*'  Before 
the  court  could  grant  the  prayer  thus  made  to  it,  it  must 
assume  the  non-existence  of  all  the  other  oral  testimony 
given  in  the  cause ;  because,  by  the  prayer,  no  part  of  it  is 
submitted  to  the  finding  of  the  jury.  In  the  absence  of  all 
proof,  that  any  consideration  was  paid  for  the  said  permission 
and  authority  :  or,  that  it  was  delegated  by  Mayhue  and  Low- 
man to  Zeigler,  on  account  of  any  debt  due  from  the  former  to 
the  latter ;  or  for  what  purpose  this  delegation  of  power  was 
made ;  to  call  on  the  court  below  to  deduce  the  fact  of  the 
delivery  of  the  grain  to  Zeigler,  from  the  facts  submitted  by 
the  prayer  to  the  finding  of  the  jury,  was  to  ask  the  court  to 
transcend  its  jurisdiction,  and  exert  a  power  exclusively  with- 
in the  cognizance  of  the  jury.  The  authority  delegated,  and 
its  incipient  exercise  by  Zeigler,  are  perfectly  consistent, 
either  with  the  delivery,  or  non-delivery  of  the  grain.  De- 
livery, in  this  case,  was  a  fact  dependent  upon  the  intention 
of  the  parties,  to  be  passed  on  by  the  jury,  upon  evidence 
being  offered,  which  was  legally  sufficient  for  them  to  assume 


OF  MARYLAND.  163 


Bell,  et  al,  vs.  Webb  and  Mong.— 1844. 


its  existence.  And  so  far  from  the  court  granting  the  appel- 
lant's prayer,  upon  the  finding  by  the  jury  of  the  facts  enu- 
merated, with  equal  if  not  greater  propriety  might  the  appel- 
lees have  prayed  an  instruction  from  the  court  to  the  jury, 
that  from  their  finding,  only,  the  facts  submitted  to  them  in 
the  appellant's  prayer,  they  were  not  warranted  in  finding  the 
delivery  of  the  grain  to  Zeigler. 

Concurring  in  opinion  with  the  county  court,  in  its  admis- 
sion of  the  testimony  stated  in  the  first  bill  of  exceptions  ; 
and  in  its  refusal  to  grant  the  appellant's  prayers  in  the 
second  and  fourth  bills  of  exceptions,  we  affirm  its  judgment. 

JUDGMENT    REVERSED. 


PETER   BELL,   ET   AL.,   vs.    WILLIAM  WEBB   AND  PETER 
MONG. — December,  1844. 

On  the  1st  February  1820,  B.  being  in  debt  on  judgment,  executed  a  mort- 
gage of  his  lands  to  C.,  to  secure  him  a  sum  due  on  bond.  On  the  29th  of 
the  same  month,  he  executed  a  second  mortgage  of  his  lands  and  personal 
property  to  W.  and  M.,  who  were  his  sureties ;  and  for  their  indemnity. 
On  the  27th  July  following  he  executed  a  deed  of  trust  for  the  property 
mentioned  in  the  second  mortgage,  to  the  same  grantees.  The  trust  was 
to  sell  the  property,  as  speedily  as  it  could  be  done  without  a  sacrifice,  and 
pay  1st,  all  liens  and  incumbrances  according  to  their  priority  ;  and  2nd, 
all  judgments  obtained  against,  debts  or  liabilities  undertaken  by,  W.  and 
M.  for  the  said  B.  The  personal  property,  which  was  under  execution, 
was  sold  and  so  applied.  The  land  was  not  sold  until  October  1821. 
HELD  : 

1st.  That  as  the  trustees  were  not  obliged  to  sell  at  a  sacrifice,  by  the  terms 
of  the  deed,  the  depressed  price  of  lands  furnished  a  sufficient  justification 
to  them  for  forbearing  the  sale  for  the  time  they  did  forbear. 

2nd.  That  at  the  sale  of  the  land,  which  was  by  virtue  of  an  execution,  the 
purchaser  was,  in  fact,  an  agent  of  one  of  the  trustees. 

3rd.  A  trustee  who  purchases  the  trust  property,  which  had  been  previously 
levied  on,  at  the  sheriff's  sale  under  the  writ,  being  guilty  of  no  fraudulent 
conduct  to  depress  the  price,  will  be  entitled  to  re-imbursement  of  his  ex- 
penditures, but  cannot  deprive  the  c.  q.  t.  of  the  benefit  of  his  purchase. 

4th.  The  circumstance  of  the  trustee  having  an  interest  coupled  with  his 
trust,  as  for  the  satisfaction  of  his  own  claims,  does  not  dispense  with  the 


164  CASES  IN  THE  COURT  OF  APPEALS 

Bell,  et  al.,  vs.  Webb  and  Mong.— 1844. 


equity,  that  all  his  acts  should  enure  in  equal  proportions  to  the  benefit  of 
others  according  to  the  extent  of  their  claims,  as  well  as  to  himself. 

Where  a  c.  q.  t.  attended  the  sale  of  trust  property,  under  an  execution,  by  a 
judgment  creditor  of  the  grantor  of  the  fund,  was  requested  to  bid  and 
did  not ;  nor  did  he  express  any  dissatisfaction  therewith,  but  it  did  not 
appear  that,  ho  then,  or  at  any  subsequent  time  until  the  filing  of  his  bill, 
had  any  notice  or  knowledge,  that  his  trustee,  through  an  agent,  was  the 
purchaser,  there  is  no  ground  to  impute  acquiescence  in  the  sale,  though 
eighteen  years  had  elapsed. 

In  such  a  case,  the  sale  is  voidable  at  the  election  of  the  c.  q.  t.  The  land 
remaining  in  the  possession  of  the  trustee,  at  the  institution  of  the  suit, 
may  be  sold,  and  the  purchase  money,  after  allowing  the  trustee  all  the 
money  by  him  paid  and  applied  to  the  purposes  of  the  trust,  and  also  for  all 
necessary  and  proper  expenditures  upon  the  land,  and  permanent  improve, 
ments  thereon,  over  and  above  its  profits,  shall  be  applied  to  the  purposes 
of  the  trust. 

APPEAL  from  the  Equity  side  of  Washington  County  Court. 

The  bill,  in  this  cause,  was  filed  on  the  13th  October  1839, 
by  Peter,  Daniel,  and  Frederick  Bell,  of,  &c.,  children  and 
administrators  ot  Frederick  Bell,  late  of  Washington  county, 
deceased,  and  alleged,  that  on  or  about  the  1st  February 
1820,  Daniel  Berger  being  seized  in  fee  of  the  lands,  &c., 
hereinafter  mentioned,  proposed  to  mortgage  the  same  to  the 
said  Frederick  Bell,  deceased,  to  secure  a  certain  claim  which 
the  said  deceased  at  that  time,  had  against  the  said  Daniel 
Berger;  and  the  said  Berger  affirmed  the  said  premises  to  be 
free  from  all  prior  incurabrances;  that  on  said  1st  February 
1820,  the  said  Daniel  Berger,  executed  and  delivered  to  their 
said  deceased  father,  a  deed  of  mortgage  for  the  said  lands 
and  tenements,  reciting,  among  other  things,  that  "whereas 
the  said  Daniel  Berger,  by  his  bond  or  obligation,  bearing  even 
date  with  these  presents,  stands  bound  unto  the  said  Frederick 
Bell,  his,  &c.,  in  the  sum  of  $1402.60,  with  condition  there- 
to -written,  for  the  payment  of  $701.30,  with  legal  interest 
from  the  1st  March  next,  ensuing  the  date,  &c."  And  the 
said  Daniel  Berger,  by  said  deed,  for  and  in  consideration  of 
the  said  recited  debt,  as  well  as,  &c.,  did  grant,  &c.,  unto  the 
said  mortgagee  and  to  his  heirs,  &c.,  a  certain  part  of  a  tract 
of  land  called  "Huckleberry  Hall"  containing,  &c. ;  and  a 


OF  MARYLAND.  165 


Bell,  et  al.,  vs.  Webb  and  JViong.— 1844. 


certain  tract  of  land,  called  "Kysers  Inheritance,"  containing, 
&c.  And  the  said  deed  contained  a  condition,  or  proviso, 
thereto  annexed,  that  if  the  said  Daniel  Berger  should  pay  the 
said  $701.30,  on  or  before  the  first  day  of  March,  ensuing  the 
date  of  said  deed,  the  same  should  be  void,  otherwise,  to  re- 
main in  full  force  and  virtue  in  law;  all  of  which  will  more 
fully  appear,  £c. ;  that  the  said  sum  of  $701.30,  was  not  paid 
to  your  orators'  deceased  father  in  his  lifetime,  or  any  person 
on  his  account,  nor  to  your  orators,  or  any  person  on  their 
account,  since  his  decease,  according  to  the  said  provisions  in 
the  said  deed  and  bond  mentioned,  whereby  the  said  deed  of 
mortgage  became  forfeited,  &c.  But  now,  so  it  is,  the  said 
Daniel  Berger,  combining  and  confederating  with  a  certain 
Wm.  Webb,  and  a  certain  Peter  Mong,  and  divers  other  per- 
sons, whose  names  are  hereinafter  mentioned,  and  made  par- 
ties hereto,  and  others,  &c.,  to  injure  and  aggrieve  your  ora- 
tors' deceased  father,  in  his  lifetime,  and  your  orators  since 
his  death;  and  to  deprive  them  of  the  said  sum  of  money,  and 
the  interest  thereon,  give  out  and  pretend,  that  the  said  Daniel 
Berger,  in  his  lifetime,  executed  a  certain  other  deed  of  mort- 
gage to  the  said  William  Webb  and  Peter  Mong,  of  the  same 
property,  to  secure  them  in  the  manner  therein  set  forth  and 
recited;  which  the  said  Webb  and  Mong,  claim  as  a  prior  lien, 
or  incumbrance,  on  the  said  property,  which  said  deed  is  dated, 
the  29th  February  1820.  And,  that  the  said  Daniel  Berger 
executed  a  certain  other  deed,  or  conveyance,  in  trust,  of  the 
same  property,  for  the  purposes  therein  mentioned,  to  the  said 
William  Webb  and  Peter  Mong,  which  said  deed  is  dated,  the 
27th  July  1820.  That  the  said  William  Webb  and  Peter  Mong, 
under  the  authority  given  them  by  said  deed  of  trust,  pretended 
to  convey  the  said  property  to  Marmadu/ce  W.  Boyd,  by  deed, 
dated  the  24th  January  1824,  for  the  trifling  consideration  of 
one  thousand  and  ten  dollars;  that  all  the  said  conveyances 
were  only  part  of  a  scheme  and  contrivance,  to  defeat  the  just 
claim  of  your  orators'  deceased  father,  who  was  not  familiar 
with  matters  of  law,  and  was  prevented  prosecuting  his  claim 
against  said  property,  by  the  intricate  entanglement  of  the 


166  CASES  IN  THE  COURT  OF  APPEALS 

Bell,  at  al ,  vs.  Webb  and  Mong.— 1844. 

same;  that  the  said  Marmaduke  W.  Boyd,  the  nominal  gran- 
tee in  said  deed,  never  took  possession  of  said  property,  and 
does  not  appear  ever  to  have  enjoyed  any  benefit  under  the 
said  last  mentioned  deed;  but  the  same  was,  in  fact,  a  mere 
contrivance  of  said  Mong,  or  said  Webb  and  Mong,  to  protect 
themselves,  or  the  said  Mong,  in  the  possession  and  enjoyment 
of  said  property,  which  he,  the  said  Mong,  appears  to  have 
had,  and  the  proceeds  thereof,  since  1820,  till  the  present 
time;  and  to  defeat  the  claim  of  your  orators'  deceased  father. 
And,  the  said  Mong,  still  confederating  with  the  said  Daniel 
Berger,  notwithstanding  the  deed,  he,  the  said  Mong,  had  pre- 
viously, in  conjunction  with  the  said  Wm.  Webb,  as  the  trustees 
aforesaid,  pretended  to  make  to  Marmaduke  W.  Boyd, and  the 
legal  title  thereby  conveyed  to  said  Boyd,  (if  the  said  Webb  and 
Mong  could  convey  the  same,)  he,  the  said  Peter  Mong,  took 
another  deed  of  the  same  property  from  the  said  Daniel  Berger, 
dated  the  13th  February  1828;  the  said  Berger  not  having 
had  any  reconveyance  of  said  property.  All  of  which  will 
more  fully  appear,  by  reference  to  the  said  deeds,  each  and 
every  of  which,  your  orators  pray,  may  be  taken  as  part  of 
this  bill.  And  your  orators  aver,  that,  if  the  said  deeds  were 
in  fact  made  bona  fide,  and  for  good  and  valuable  considera- 
tion, of  which  they  charge  to  be  fact,  the  mortgage  of  your 
orators'  deceased  father  has  the  priority  of  date,  and  is,  there- 
fore, entitled  to  be  fully  satisfied  out  of  the  said  property.  Your 
orators'  further  allege,  that  under  the  deed  of  trust  of  the  said 
Daniel  Berger  to  the  said  Wm.  Webb  and  Peter  Mong,  dated 
27th  July  1820,  there  was  a  large  and  valuable  personal  pro- 
perty, conveyed  to  Wm.  Webb  and  Peter  Mong,  along  with  the 
property  herein  before  mentioned ;  and,  also,  another  small 
tract  of  land,  containing  one  and  one-fourth  acre;  all  of  which 
both  personal  and  real  property,  were  conveyed  to  satisfy  the 
trusts  therein  mentioned,  and  to  pay  off  all  encumbrances  on 
the  property;  that,  in  said  deed,  were  recited  certain  judg- 
ments against,  and  other  liabilities  of  Daniel  Berger;  but  the 
more  effectually  to  perplex  and  defeat  the  claim  of  your  orators' 
deceased  father,  it  is  not  mentioned,  though  created  only  a  few 


OF  MARYLAND.  167 


Bell,  et  al.,  vs.  Webb  and  Mong.— 1844. 


months  before  the  date  of  said  deed,  that  the  judgments,  which 
they  pretended  to  make  liens  on  the  property,  amounted  only 
to  about  the  sum  of  $2000,  which  the  personal  property  would 
have  been  sufficient  to  satisfy,  if  a  faithful  account  had  been 
rendered  of  the  same ;  and  a  fund  might  have  been  raised 
from  the  sale  of  the  real  property,  more  than  sufficient  to  pay 
off  the  mortgage  of  your  orators'  deceased  father.  But  your 
orators  charge,  that  the  said  judgments  had  not  a  prior  claim 
upon  said  property  to  the  said  mortgage,  or  if  they  had,  they 
have  since  been  discharged.  Yet  the  said  Wm.  Webb  and 
Peter  Mong,  have  neglected  to  settle  any  account  of  the  real 
and  personal  estate,  so  conveyed,  in  trust,  and  to  pay  off  the 
incumbrances,  according  to  the  directions  of  the  deed,  and  the 
trusts  conferred  upon  and  assumed  by  them.  And  your  ora- 
tors charge,  that  the  said  Peter  Mong,  since  the  deed  of 
Daniel  Bergerlo  him,  dated  the  13th  February  1828,  has  taken 
upon  himself  the  exclusive  control  and  disposition  of  said  pro- 
perty, and  has  sold  parts  thereof  to  divers  persons,  to  wit,  &c.; 
shewing  the  great  value  of  said  property,  and  the  fraudulent 
and  insufficient  consideration  pretended  to  have  been  paid  for 
the  whole  property,  all  of  which  is  of  equal  value,  conveyed 
or  pretended  to  be  conveyed  under  the  deed  of  trust,  aforesaid; 
which  will  more  fully,  and  at  large  appear,  by  reference  to  said 
last  mentioned  deeds ;  all  of  which  are  made  parts  of  this 
bill.  And  your  orators  further  shew,  that  the  said  Daniel 
Bergerdied  in  this  county,  in  or  about  the  year  1833,  or  1834, 
insolvent,  and  without  any  personal  property  to  administer 
upon  ;  that  there  was  no  administration,  and  that,  consequent- 
ly, your  orators  claim,  or  any  part  of  it,  was  never  satisfied; 
that  the  said  Daniel  Berger  left  children,  to  wit,  &c. 

Prayer,  that  the  said  Wm.  Webb,  Peter  Mong,  Marmaduke 
W.  Boyd,  and  other  parties,  defendants  hereto,  may  set  forth 
and  show,  what  other  right,  title,  interest,  or  claim,  they,  or 
any  of  them,  may  have  in  said  property ;  that  the  said  Peter 
Mong,  or  the  said  Wm.  Webb  and  Peter  Mong,  and  the  other 
parties,  holding  the  said  lands  according  to  their  proportions, 
if  there  be  not  a  sufficient  quantity  still  in  the  possession  of 


168  CASES  IN  THE  COURT  OK  APPEALS 

Bell,  et  al.,  vs.  Webb  and  Mong.— 1844. 

said  Peter  Mong,  may  be  decreed  to  pay  and  satisfy  to  your 
orators  the  said  sum  of,  &c.;  and,  in  default  thereof,  that  the 
said  parties  hereto,  and  all  persons  claiming  or  to  claim  under 
them,  may  be  foreclosed  of,  and  from,  all  equity  of  redemption, 
&c.;  and  the  same,  or  so  much  as  may  be  required,  may  be 
decreed  to  satisfy  the  mortgage  held  by  your  orators ;  and,  if 
it  be  necessary  and  proper,  that  the  said  Wm.  Webb  and  Peter 
Mong,  may  be  decreed  to  settle  their  trust  under  the  direction 
of  this  honorable  court,  and  that  the  claim  of  your  orators  may 
be  decreed  thereby  to  be  satisfied  ;  and  that  your  orators  may 
have  such  other,  and  further  relief,  as,  &c. ;  of  subpoena,  &c. 

The  defendants,  the  trustees,  appeared  and  answered  the 
bill.  The  nature,  character  and  extent  of  that  answer;  the 
exhibits  filed  by  both  parties ;  and  the  testimony,  sufficiently 
appear  in  the  opinion  of  this  court. 

On  the  24lh  December  1842,  Washington  county  court,  set- 
ting as  a  court  of  equity,  dismissed  the  bill  with  costs,  and  the 
complainants  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, STONE  and  SEMMES,  J. 

By  SPENCER  for  the  appellant,  and 
By  PRICE  for  the  appellees. 

ARCHER,  J.,  delivered  the  opinion  of  this  court. 

Daniel  Berger,  being  largely  indebted  on  judgments  obtained 
against  him  in  Washington  county  court,  executed  to  the  com- 
plainant, on  the  1st  of  February  1820,  a  mortgage  on  his  lands 
to  secure  the  payment  of  $701.30;  and  on  the  29th  of  Febru- 
ary, executed  a  deed  of  mortgage  to  William  Webb  and  Peter 
Mong,  for  his  said  lands  and  personal  property.  In  this  deed, 
it  is  recited,  that  Berger  was  in  debt  to  sundry  persons  in  the 
sum  of  $6000;  and  that  Webb  and  Mong  were  his  securities, 
and  that  the  deed  is  executed  to  secure  them  the  payment  there- 
of; and  subsequently,  on  27th  July  1S20,  he  executed  a  deed  of 
trust  for  the  said  lands  and  personal  property  in  trust,  to  sell 
the  same  as  speedily  as  it  could  be  done,  without  a  sacrifice, 


OF  MARYLAND.  169 


Bell,  et  al.,  vs.  Webb  and  Mong.— 1844. 


for  the  purpose  of  paying  off,  first,  all  the  liens  and  incum- 
brances  according  to  their  priority.  Secondly,  for  paying  off 
all  judgments,  and  debts,  and  liabilities,  obtained  against,  or 
undertaken  by  the  grantees,  on  account,  and  for  the  said  Ber- 
ger,  &c. 

The  answer  states,  that  the  personal  property,  which  was 
under  execution,  sold  on  2nd  November  1820,  for  near  $600, 
and  was  applied  to  payment  of  the  executions  which  covered  it. 
That  the  trustees  offered  the  lands  for  sale,  and  could  get  no 
bid  for  them,  owing  to  the  depressed  prices  of  land  at  that 
time.  That  the  judgment  creditors  became  impatient,  issued 
executions,  and  the  land  was  offered  at  sheriff's  sale  on  3rd 
day  of  July  1821,  and  was  subsequently  sold  by  the  sheriff 
under  vendies,  on  the  21st  of  October  1821,  to  Marmaduke  W. 
Boyd  for  $1010.  That  this  sum  was  insufficient  to  pay  the 
liens  and  judgments,  prior  to  the  complainants  mortgage  ;  that 
Boyd  purchased  the  land,  at  the  request  of  Webb  and  Mong,  to 
aid  them  in  getting  out  of  the  difficulties  in  which  they  were 
involved,  by  being  connected  with  the  concerns  of  Berger. 
That  after  said  purchase,  they  conveyed  to  Boyd  all  the  inte- 
rest they  had  in  the  land,  to  enable  Boyd  to  sell  the  lands,  that 
the  proceeds  might  be  applied  to  their  relief;  but  Boyd  being 
unable  to  sell,  Mong  agreed  to  purchase  the  land  from  Boyd, 
and  paid  him  $1500  for  the  same,  which  sum  covered  all  ex- 
penditures by  Boyd,  in  the  purchase,  &c.,  of  the  land. 

By  the  evidence,  it  is  established,  that  Mong  and  Webb  had 
offered  the  lands  at  private  sale  repeatedly ;  that  lands  were 
depressed  in  price  very  much  at  that  time,  and  that  within  a 
year  after  the  deed  to  them  j?.  fas,  on  those  judgments  were 
issued,  and  upon  vendies,  they  were  sold. 

As  the  trustees  were  not  obliged  to  sell  at  a  sacrifice,  by  the 
terms  of  the  trust,  the  depressed  price  of  lands  furnished  a 
sufficient  justification  to  them  for  forbearing  the  sale,  for  the 
time  they  did  forbear. 

There  appears  to  be  no  evidence  satisfactory  to  us,  that 
there  existed  any  combination  between  the  trustees  and  the 
judgment  creditors,  to  bring  these  lands  to  a  sale. 
22         v.2. 


170  CASES  IN  THE  COURT  OF  APPEALS 

Boll,  et  al.,  vs.  Webb  and  Mong.— 1844. 

We  are,  therefore,  bound  to  consider,  that  no  imputation 
can  lie  against  the  trustees  on  account  of  the  executions. 

It  cannot  however,  we  think,  be  doubted,  that  at  the  sheriff's 
sale,  Boyd  in  the  purchase,  was  the  mere  agent  for  Mong. 
This  is  evident,  we  think,  as  well  from  the  facts  disclosed  in 
the  answer,  as  from  the  testimony  of  Mong  himself:  and  one 
of  the  questions  which  arises  in  the  case,  is,  whether  a  trustee 
can  be  permitted  to  purchase  the  cestui  que  trusts  property, 
levied  upon  and  sold  at  a  sheriff's  sale,  without  any  instru- 
mentality of  his.  As  decisive  of  this  question,  we  refer  to  7 
G.  Sf  /.  1.  The  trustee  thus  purchasing,  will  be  entitled  to 
re-imbursement  for  his  expenditures  in  the  purchase,  but  he 
cannot  deprive  the  cestui  que  trust  of  the  benefit  arising 
from  the  purchase,  if  there  be  such  benefit.  3  Des.  25. 

But,  it  is  supposed,  that  whatever  may  be  the  general  rule 
on  this  subject,  that  in  the  case  before  us.  there  was  a  trust 
coupled,  with  an  interest,  which  authorized  the  purchase  for 
his  own  benefit.  The  trustee  had  an  interest  in  the  satisfac- 
tion of  his  own  claims,  it  is  true,  but  equity  would  seem  to 
demand,  that  all  his  acts,  in  relation  to  the  trust  property, 
should  enure  in  equal  proportions  to  the  benefit  of  others,  ac- 
cording to  the  extent  of  their  claims,  as  well  as  to  himself. 
This  point  seems  to  have  been  involved  in  7  Gill  8f  John.  2. 

Another  question  is,  whether  the  sale  ought  not  to  be  con- 
sidered, as  ratified  by  long  acquiescence;  after  a  knowledge 
of  the  facts,  which  will  impeach  a  sale,  a  party  would  be 
bound,  in  a  reasonable  time,  to  proceed,  and  if  he  do  not,  he 
will  be  presumed  to  have  acquiesced.  Here  a  period  of  eigh- 
teen years  has  elapsed,  from  the  sale  to  the  filing  of  the  bill; 
but  as  far  as  the  records  presented  the  case,  it  would  appear 
to  have  been  an  ordinary  sale  to  Boyd,  by  the  sheriff,  and  it 
seems  only  to  have  been  discovered  at  the  filing  of  the  answer, 
that  Boi/dhad  purchased  for  the  trustee;  so  that  the  complain- 
ant proceeded  upon  this  new  state  of  the  case  to  vacate  the 
purchase  immediately  thereafter.  It  is  true,  the  complainant 
attended  the  sale,  and  was  requested  to  bid,  but  declined,  and 
did  not  express  dissatisfaction  therewith.  But  it  does  not 


OF  MARYLAND.  171 


Barrcll  vs.  Glover,  et  al.— 1844. 


appear,  that  he  then,,or  at  any  subsequent  time,  until  the  insti- 
tution of  these  proceedings,  had  any  notice  or  knowledge  that 
Boyd  was  purchasing  for  the  trustee.  We  therefore  think, 
there  is  no  ground  to  impute  any  acquiescence  to  the  com- 
plainant. 

In  view,  therefore,  of  all  the  circumstances  of  the  case,  we 
are  of  opinion,  that  the  sale  thus  made,  is  voidable,  at  the 
election  of  the  complainant;  and  that  the  land  described  in  the 
proceedings,  and  yet  remaining,  at  the  institution  of  this  suit, 
in  the  possession  of  the  defendant  Mong,  should  be  sold;  and 
that  the  purchase  money,  after  allowing  to  the  defendant  all 
the  monies  by  him  paid  and  applied,  to  the  purposes  of  the 
trust,  and  also  for  all  necessary  and  proper  expenditures  upon 
the  land,  and  permanent  improvements  thereon,  over  and  above 
the  profits  of  said  lands,  shall  be  applied  to  the  purposes  of 
the  deed  of  trust,  made  by  Berger,  on  the  27th  July  1820; 
and  that  the  cause  should  be  remanded,  to  the  county  court, 
that  the  principles  of  this  decree  may  be  carried  into  effect  by 
further  proceedings  therein. 

DECREE  REVERSED. 


SAMUEL  B.  BARRELL,  vs.  JAMES  GLOVER,  ET.  AL. — Decem- 
ber, 1844. 

An  action  of  debt  cannot  be  maintained  upon  a  deed  of  mortgage,  reciting 
that  the  grantee  was  indebted  to  the  grantor  in  a  sum  certain,  and  that  tho 
deed  was  executed  for  the  better  securing  the  payment  thereof,  with  a  pro- 
viso, after  the  habendum  of  the  instrument,  that  upon  payment  of  the 
money  the  deed  should  be  void,  there  being  no  covenant  ia  the  deed  to 
pay  the  debt. 

APPEAL  from  Jlllegany  County  Court. 
This  was  an  action  of  debt,  instituted  on  the  6th  February 
1841,  by  the  appellees  against  the  appellant. 


172  CASES  IN  THE  COURT  OF  APPEALS 

Barrell  vs.  Glover,  et  al.— 1844. 

The  plaintiff 'filed  in  the  cause  the  following  indenture. 

This  indenture,  made  this  22nd  August  1836,  between 
Samuel  B.  Barrell  of,  &c.,  of  the  one  part,  and  James  Glover, 
James  Pearcy,  and  Lewis  McMillan,  of  the  other  part.  Where- 
as, the  said  Samuel  B.  Barrell  stands  indebted  to  the  said 
James  Glover,  James  Pearcy,  and  Lewis  McMillan,  in  the  sum 
of  $5000,  current  money,  to  be  paid  to  them  by  the  said 
Samuel  B.  Barrell,  on  or  before  the  22nd  day  of  August  1837, 
with  legal  interest  thereon  until  paid,  and  for  the  better  secur- 
ing the  payment  thereof,  with  interest  as  aforesaid ;  the  said 
S.  B.  B.  hath  agreed  to  execute,  and  doth  execute  these  pre- 
sents. Now  this  indenture  witnesseth,  that  the  said  S.  B.  B., 
in  consideration  of  the  said  debts  or  sum  owing  to  the  said  J. 
G.,  J.  P.,  and  L.  McM.,  as  aforesaid,  and  for  the  better  secur- 
ing the  payment  thereof,  with  interest  to  the  said  J.  G.,  J.  P., 
and  L.  McM.,  their,  &c. ;  and  also  in  consideration  of  the  fur- 
ther sum  of,  &c.,  to  him,  the  said  S.  B.  B.,  in  hand,  well  and 
truly  paid,  by  the  said  J.  G.,  J.  P.,  and  L.  McM.,  at  or  before 
sealing  and  delivery  of  these  presents,  the  receipt  whereof,  &c., 
hath  granted,  bargained  and  sold,  released  and  confirmed,  and 
by  these  presents  doth  grant,  bargain  and  sell,  release  and 
confirm  unto  the  said  J.  G.,  J.  P.  and  L.  McM.,  their  heirs 
and  assigns,  all  that  tract  or  parcel  of  land  called  "Water 
Works"  lying  in  Jlllegany  county,  aforesaid.  To  have  and 
to  hold  the  said  tract  of  land  called  "Water  Works,"  unto  the 
said  J.  G.,  J.  P.  and  L.  McM.,  their  heirs  and  assigns  forever. 
Provided  always,  and  it  is  the  true  intent  and  meaning  of  these 
presents,  and  of  the  said  parties  thereto,  that  if  the  said  S.  B. 
B.,  his  heirs,  executors,  or  administrators,  do  and  shall  well 
and  truly  pay,  or  cause  to  be  paid,  to  the  said  J.  G.,  J.  P.,  and 
L.  McM.,  their,  &c.,  the  said  full  sum  of  $5000,  with  legal 
interest  for  the  same,  on  or  before  the  22nd  August  1837,  with- 
out any  deduction  or  abatement  whatsoever,  then  and  from 
thenceforth,  these  presents,  &c. 

The  plaintiffs  declared,  that  whereas  the  said  defendant 
heretofore,  &c.,  by  a  certain  indenture,  then  and  there  made, 
between  the  said  plaintiffs  of  the  one  part,  and  the  said  de- 


OF  MARYLAND.  173 


Wharton  et  al,  vs.  Callan.— 1844. 


fendant  of  the  other  part,  which  said  indenture,  sealed  with 
the  seal  of  the  said  defendant,  the  said  plaintiffs  now  bring 
here  into  court  the  date  whereof  is  the  day  and  year  aforesaid, 
acknowledged  himself  to  be  indebted  to  the  said  plaintiffs,  in 
the  sum  of  $5000,  current  money,  to  be  paid  to  the  said  plain- 
tiffs, by  him,  the  said  defendant,  on  or  before  the  22nd  day  of 
August,  in  the  year  1837,  with  legal  interest  thereon,  until  paid. 
Nevertheless,  &c. 

After  oyer  of  the  deed,  the  defendant  demurred  generally  to 
the  declaration,  in  which  the  plaintiffs  joined. 

The  county  court  rendered  judgment  in  favor  of  the  plain- 
tiff, for  the  debt  claimed  in  the  declaration,  and  the  defendant 
appealed  to  this  court. 

The  cause  was  submitted  without  argument  to  ARCHER, 
DORSEY,  CHAMBERS,  SPENCE  and  STONE,  J. 

By  F.  A.  SCHLEY  for  the  appellant,  and 
By  ALEXANDER  for  the  appellees,  who  cited  Penn  8?  Dig- 
ges,  ex.  of  Digges  vs.  Carroll,  et  al.  Mss.  Deer.  1836. 

BY  THE  COURT. 

JUDGMENT  REVERSED,  WITH  COSTS  AND 
JUDGMENT  FOR  THE  APPELLANT. 


JOHN  O.  WHARTON,  ABRAHAM  BARNES,  AND  MELCHIOR  B. 
MASON,  vs.  JOHN  T.  CALLAN. — December,  1844. 

Where  the  defendant  made  his  note  payable  to  the  plaintiff,  who  passed  it 
away  for  value,  and  afterwards,  the  plaintiff  paid  it,  he  may  maintain 
an  action  for  money  paid  for  the  defendant,  though  after  the  note  fell 
due,  and  before  the  plaintiff  had  paid  his  endorsement,  the  defendant  was 
released  under  the  act  for  the  relief  of  insolvent  debtors. 

APPEAL  from  Washington  County  Court. 

This  was  an  action  of  assumpsit,  brought  by  the  appellee 
against  the  appellants,  on  the  16th  March  1842.  The  plaintiff 
declared. 


174  CASES  IN  THE  COURT  OF  APPEALS 


Wharton,  ct  al..  vs.  Callan. — 1844. 


IST.  On  the  note  of  the  defendants,  dated  the  20th  April 
1839,  payable  on  or  before  the  1st  November  1839,  to  the 
plaintiff  for  $1000. 

2ND.  On  an  insimul  computassent,  on  the  1st  March  1842, 
and  a  balance  due  plaintiff  of  $1000. 

SRD.  For  money  paid,  laid  out  and  expended,  &c. 

The  defendants  pleaded  in  bar: 

IST.  JVbn  assumpsit. 

2ND.  That  as  to  1st  count  in  the  declaration,  the  plaintiff, 
after  the  making  and  delivery  of  the  note,  declared  on  to  him, 
endorsed  and  delivered  it  to  R.  C.  W.,  which  said  R.  C.  W., 
prosecuted  the  said  appellants  to  judgment  upon  the  said  note. 

SED.  That  on  the  12th  May  1840,  the  said  Abraham;  on 
the  18th  August  1840,  the  said  Melchior ;  and  on  the  16th 
March  1841,  the  said  John  0.;  respectively  became,  and  were 
petitioners  for  relief  under  the  acts  relating  to  insolvent  debt- 
ors ;  were  severally,  and  in  due  course  of  law,  discharged  from 
their  debts,  and  finally  released  ;  and  that  the  plaintiff  is  only 
entitled  to  a  qualified  judgment,  to  affect  future  acquisitions 
by  gift,  &c.  This  plea  contained  full  and  formal  averments  of 
the  proceedings  of  ihe  appellants  to  a  final  release,  &c. 

The  plaintiff  joined  issue  on  the  1st  plea,  and  replied  to  the 
2nd  plea  of  the  defendants  below,  as  follows: 

The  plaintiff  saith,  that  he,  &c.,  ought  not  to  be  barred,  &c. 
That  although  true  it  is,  that  the  said  plaintiff  did,  for  a 
valuable  consideration  paid  to  him,  assign  and  endorse  over, 
and  deliver  to  the  said  Richard  C.  Washington,  the  said  pro- 
missory note,  mentioned  and  described  in  the  first  count  of 
the  said  declaration,  and  the  said  Richard,  as  such  endorser 
or  holder  of  said  note,  did  institute  suit  on  the  same,  in  Wash- 
ington county  court,  against  the  said  defendants,  and  recovered 
judgment  against  them  in  said  court,  as  stated  in  the  said  plea 
of  the  said  defendant,  by  them  secondly  above  pleaded,  yet 
the  said  plaintiff  in  fact  saith,  that  the  said  John  0.  Wharton, 
to  wit:  (here  state  and  finally  set  out  the  respective  applica- 
tions of  the  several  defendants,  for  the  benefit  of  the  insolvent 


OF  MARYLAND.  175 


Wharton,  et  al,  vs.  Callan  — 1844. 


law,  and  its  supplements,  and  their  respective  discharges  under 
the  same,)  and  the  said  plaintiff  says,  that  the  said  judgment, 
so  recovered  by  the  said  Richard,  against  the  said  defendants, 
was  in  no  way  paid  or  satisfied  by  the  said  defendants,  other 
than  by  their  said  respective  discharges  under  said  act  of  Assem- 
bly, and  its  several  supplements;  whereby,  the  said  Richard, 
was  prohibited  from  issuing  any  writ  of  execution,  or  other 
process  on  said  judgment,  whereby  he  could  affect  either  the 
persons  or  property  of  said  defendants,  or  either  of  them  ;  ex- 
cept such  property  of  said  defendants  as  was  not  included  in 
their  schedules,  returned  in  their  said  applications,  of  which 
the  said  plaintiff  says  there  was  none.  And  the  said  plaintiff, 
in  fact,  further  saith,  that  because  of  the  said  insolvency  of  the 
said  defendants,  and  their  failure  to  pay,  or  in  any  manner  sat- 
isfy said  judgment,  the  said  Richard,  as  holder  and  endorser 
of  said  note,  in  the  first  count  of  said  declaration  mentioned, 
afterwards,  and  after  the  said  defendants  were  discharged  as 
aforesaid,  to  wit :  on  the  first  day  of  February  1842,  at  the 
county  aforesaid,  demanded  and  received  from  him,  the  said 
plaintiff,  as  endorser  on  said  note  as  aforesaid,  the  full  amount 
of  said  note  then  due,  and  he,  the  said  plaintiff,  as  such  endor- 
ser, then  and  there  paid  to  the  said  Richard  C.  Washington,  a 
large  sum  of  money,  to  wit:  the  sum  of  $1200,  current 
money,  in  full,  for  the  said  claim  of  said  Richard,  on  him,  the 
said  plaintiff,  on  said  promissory  note,  on  which  said  judg- 
ment was  rendered  ;  by  virtue  of  which  said  payment  by  him, 
the  said  plaintiff,  to  the  said  Richard,  a  right  of  action  to 
recover  the  same  from  the  said  defendants,  hath  accrued  to 
him,  the  said  plaintiff;  and  this  he,  the  said  plaintiff,  is  ready 
to  verify ;  wherefore  he  prays  judgment  on  the  1st  count;  and 
his  damages  by  him  sustained,  on  occasion  of  the  non-perfor- 
mance of  the  said  promise  and  undertaking  of  the  said  defen- 
dants, in  the  said  first  count,  in  the  said  declaration  mentioned ; 
to  be  adjudged  to  him,  &c. 

Replication  to  3rd  plea. 

The  said  plaintiff  saith,  that  the  said  defendants,  heretofore, 
to  wit,  on  the  20th  day  of  April  1839,  at,  &c.,  made  their  cer- 


176  CASES  IN  THE  COURT  OF  APPEALS 

VVharton,  et  al.,  vs.  Callan — 1844. 

tain  promissory  note  in  writing,  bearing  date  the  day  and  year 
aforesaid,  and  thereby,  then  and  there,  on  or  before  the  first  day 
of  November  1839,  they,  or  either  of  them,  promised  to  pay 
to  the  said  John  F.  Callan,  or  order,  for  value  received, 
$1000;  and  then  and  there,  delivered  the  said  note  to  the 
said  John  F.  Callan;  and  the  said  plaintiff,  to  whom,  or 
to  whose  order,  the  payment  of  the  said  sum  of  money,  in 
the  said  promissory  note  specified,  was  to  be  made,  after  the 
making  of  the  said  promissory  note,  and  before  the  payment 
of  the  said  sum  of  money  therein  specified,  to  wit:  on  the 
first  day  of  November,  in  the  year  1839,  at  the  county  afore- 
said, endorsed  the  said  promissory  note,  by  which  said  en- 
dorsement, he,  the  said  plaintiff,  then  and  there,  ordered  and 
appointed  the  said  sum  of  money,  in  the  said  promissory  note 
specified,  to  be  paid  to  one  R.  C.  W.  ;  and  then  and  there,  by 
said  endorsement  and  assignment,  bound  himself  to  be  respon- 
sible for  the  payment  of  the  same,  without  the  form  of  a  pro- 
test of  said  note ;  by  means  whereof,  and  by  force  of  the  sta- 
tute, in  such  case  made  and  provided,  the  said  defendants  then 
and  there,  became  liable  to  pay  to  the  said  Richard,  the  said 
sum  of  money  in  the  said  note  specified,  according  to  the  tenor 
and  effect  of  the  said  promissory  note ;  and  being  so  liable, 
they,  the  said  defendants,  in  consideration  thereof,  afterwards, 
to  wit :  on  the  fourth  day  of  November  1839,  at  the  county 
aforesaid,  undertook,  and  then  and  there,  faithfully  promised 
the  said  Richard,  to  pay  him  the  said  sum  of  money,  in  the 
said  promissory  note  specified,  according  to  the  tenor  and  effect 
thereof,  yet  the  said  defendants  wholly  failed  to  pay  to  the  said 
Richard,  the  said  sum  of  money,  in  the  said' promissory  note 
specified  ;  and  thereupon,  the  said  Richard,  afterwards,  to  wit: 
at  the  March  term,  in  the  year  1840,  in  Washington  county 
court,  at  the  county  aforesaid,  impleaded  the  said  defendants, 
in  a  certain  plea  of  trespass  on  the  case  on  promises,  to  the 
damage  of  the  said  Richard,  in  the  sum  of  $2000,  for 
the  not  performing  the  said  promise,  to  pay  said  promissory 
note ;  and  such  proceedings  were,  thereupon,  had  in  the  said 
court;  that  afterwards,  to  wit,  on  the  23rd  day  of  March  1841, 


OF  MARYLAND.  177 


Wharton,  et  al,  vs.  Callan  —1844. 


the  said  Richard,  by  the  consideration  and  judgment  of  the 
said  court,  recovered  in  said  plea  against  the  said  defendants 
$2000,  for  his  damages  which  he  had  sustained,  as  well  by 
reason  of  the  not  performing  the  said  promise  and  undertaking, 
to  pay  said  promissory  note,  as  for  his  costs  and  charges  by 
him  about  his  suit  in  that  behalf  expended,  whereof  the  said 
defendants  were  convict,  as  by  the  record  and  proceedings 
thereof,  still  remaining  in  this  court,  will  more  fully  and  at 
large  appear;  and  the  said  plaintiff  further  says,  that  the  said 
defendants  never  paid,  or  in  any  manner  satisfied  the  said 
judgments  ;  but  obtained  a  release,  from  the  same,  by  their  re- 
spective applications  for  the  benefit  of  the  said  act  of  Assem- 
bly, and  its  several  supplements;  and  their  several  discharges 
under  the  same,  at  the  several  times  and  in  the  manner  stated 
and  set  forth  in  their  said  third  plea;  whereby,  and  because  of 
said  discharges  of  said  defendants,  without  having  in  any  man- 
ner paid  or  satisfied  the  said  promissory  note,  or  said  judgment 
for  the  recovery  of  the  same,  the  said  Richard,  afterwards,  and 
after  the  said  discharges  of  said  defendants,  to   wit,  on  the 
first  day  of  February,  in  the  year  1842,  as  endorsee  and  holder 
of  said  promissory  note,  demand  of  him,  the  said  John  F.  Cal- 
lan, as  endorser  on  said  note,  and  as  security  to  him  for  the 
payment  of  the  same  by  the  said  defendants,  the  said  sum  of 
money  specified  in  said  promissory  note,  and  all  interest  due 
on  the  same  ;  and  which  said  sum  of  money,  the  said  John  F. 
Callan  was  bound  in  law  to  pay;  and  the  said  plaintiff  further, 
in  fact  saith,  that  he  did  afterwards,  and  after  the  said  dischar- 
ges of  said  defendants,  under  said  act  of  Assembly,  and  its 
several  supplements,  to  wit,  on  the  first  day  of  February  1842, 
at  the  county  aforesaid,  pay  to  the  said  Richard,  as  holder  and 
endorser  of  said  promissory  note,  and  in  satisfaction  of  the 
same,  the  sum  of  $1200,  current  money;  and  which  said  sum 
of  money  the  said  plaintiff  saith,  was  so  much  money  laid  out, 
expended,  and  paid  by  him,  the  said  plaintiff,  at  the  special 
instance  and  request,  and  to  and  for  the  use  and  behoof  of 
them,  the  said  defendants,  since  their  said  respective  dischar- 
ges; whereby,  notwithstanding  said  discharges,  action  hath 
23         v.2 


178  CASES  IN  THE  COURT  OF  APPEALS 

Wharton,  et  aL,  vs.  Callan.— 1844. 

accrued  to  him,  the  said  plaintiff,  to  demand  and  recover  from 
them,  the  said  defendants,  the  said  sum  of  current  money,  so 
paid  for  them  as  aforesaid  ;  and  this,  he,  the  said  plaintiff,  is 
ready  to  verify;  wherefore  he  prays  judgment,  and  his  dama- 
ges by  him  sustained,  on  occasion  of  ihe  non-performance  of 
the  said  several  promises  and  undertakings,  in  the  said  decla- 
ration mentioned,  to  be  adjudged  to  him,  &c. 

The  defendants  demurred  generally  to  the  replication  to  the 
third  plea,  in  which  the  plaintiffs  joined.  The  county  court 
rendered  judgment  on  the  demurrer  for  the  plaintiffs,  and  dama- 
ges were  assessed  by  consent.  The  defendants  prosecuted 
the  appeal. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS, SPENCE,  STONE  and  SEMMES,  J. 

MASON,  for  the  appellants,  maintained,  as  this  was  not  the 
case  of  a  security  suing  his  principal,  upon  the  ground  of 
payment  made,  after  the  principal  had  been  released  by  opera- 
tion of  law,  the  action  could  not  be  maintained.  And  he 
cited,  3  D.  8f  E.  341,  98,  599.  3  Wilson,  346. 

The  appellee  was  a  bona  fide  creditor  of  the  appellant,  by 
reason  of  the  note,  and  as  the  note  could  have  been  proved 
by  him,  as  a  debt  against  the  insolvent's  estate,  there  was  no 
liability  over.  4  D.  #  E.  825. 

At  this  point  of  the  argument,  R.  JOHNSON,  also  for  the 
the  appellants,  enquired,  if  the  court  would  hear  an  argument 
in  opposition  to  their  judgment,  in  the  appeal  of  Harris  vs. 
Oliver,  E.  S.  Mss.  In  that  case,  the  note  was  made  for  the 
accommodation  of  the  endorser,  who,  after  his  release  as  an 
insolvent  debtor,  was  offered  as  a  witness  for  the  maker  of  the 
note ;  and  it  was  held,  as  the  witness  would  be  liable  over  to 
the  defendant,  who  offered  him,  upon  his  paying  the  note,  he 
was  incompetent  to  testify. 

The  court,  upon  consultation  at  the  bar,  said  the  principle 
of  that  decision  would  not  be  disturbed. 


OF  MARYLAND.  179 


Wharton,  et  al,  vs.  Callan — 1844. 


F.  A.  SCHLEY  for  the  appellee. 

This  case  is  not  distinguishable  in  principle,  from  Harris 
vs.  Oliver.  The  endorser,  here,  has  no  right  of  action,  until 
he  has  paid  the  note.  Until  then,  he  has  no  debt  to  prove. 

Callan  would  not  be  permitted  to  question  the  appellant's 
right  to  a  release,  until  he  had  paid. 

The  rules  applicable  to  bills  of  exchange,  are  only  applica- 
ble to  notes  after  endorsement.  Byles  on  Bills,  17  Law.  Lib. 
Smith's  Mer.  Law.  163,  164.  Chitty  on  Bills,  553.  2  Burr. 
676.  Burr.  1224.  1  G.  &  J.  175. 

Notes  after  endorsement,  take  the  character  of  inland  bills. 
The  rules,  as  to  bills  creating  rights  and  duties,  show  that  en- 
dorsers are  mere  sureties,  entitled  to  such  rights,  and  will  be 
protected  accordingly.  Chitty,  266.  An  endorsement  is  an 
indemnity,  provided  due  notice  is  given  of  failure  to  pay  by 
the  maker.  Callan  is  in  law,  as  the  drawer  of  a  bill,  and 
hence,  a  security  for  the  acceptor.  Chitty  on  B.  333,  note  I, 
states  the  order  of  liability,  as  to  the  several  parties  to  the 
instrument.  3  Boss  #  Puller,  366.  4  Bing.  720.  16  Law. 
Lib.  136,  137,  138,  3  Kent  Com.  86. 

Nothing  will  discharge  the  acceptor,  but  payment  and 
release,  or  what  is  equivalent  to  a  release.  A  discharge 
under  insolvent  law,  is  neither  4  Bing.  717.  15  E.  Com. 
Law,  R.  126. 

Callan  had  no  control  over  the  bill  at  the  time  of  insol- 
vency. He  had  parted  with  it.  The  endorser's  rights  arise  on 
payment  of  the  note.  1  Lord  Ray.  742.  3  H.  #  J.  132, 133. 

By  payment  by  the  endorser,  after  his  payment  a  new  con- 
tract is  created.  17  Law.  Lib.  161. 

Before  this  he  had  no  right  of  action.  Then  can  the  prior 
release  affect  him  ?  Can  it  operate  on  a  contract  not  then  in 
existence  ?  The  insolvent  law  only  affects  the  debts  due  at 
the  period  of  arrest.  Yet  it  is  no  satisfaction.  The  debt 
still  remains.  4  D.  fy  E.  447. 

Then  a  surity  who  pays  the  debt,  is  not  precluded  by  the 
prior  insolvency  of  his  principle:  any  other  construction  would 
be  unjust. 


180  CASES  IN  THE  COURT  OK  APPEALS 

Wharton,  et  al.,  vs.  Gallon.— 1844. 


REVERDV  JOHNSON  in  reply. 

The  thing  to  be  accomplished  by  the  act  of  1805,  ch.  110, 
sect.  5  and  13,  was  the  emancipation  of  the  debtor  from  all 
his  then  engagements,  from  the  incumbrance  of  his  debts.  All 
his  property  was  to  be  surrendered  up;  nothing  was  to  be  kept 
for  contingencies.  All  property,  real,  personal,  and  mixed, 
was  to  be  conveyed.  The  5th  section  discharges  the  debtor 
from  all  debts  due,  owing  or  contracted;  all  his  covenants,  all 
his  promises,  all  discharged ;  every  form  of  agreement,  deed,  or 
contract,  is  discharged.  The  petitioners  under  the  act  of  1805, 
(which  afterwards  was  made  the  basis  of  our  general  system,) 
were  merchants;  all  indebted  on  negotiable  paper.  The  leg- 
islature designed  to  apply  the  act  to  negotiable  paper,  for  all 
the  petitioners  were  then  so  indebted.  The  endorser,  here,  is 
a  creditor,  by  force  of  the  original  contract ;  and  by  that  alone. 
The  act  was  to  release  a  petitioner,  but  no  other  person.  It 
contemplated,  that  other  persons  might  be  liable,  but  it  was 
the  debt  with  reference  to  the  original  debtor,  the  legislature 
struck  at.  The  13th  sect,  gives  relief  as  to  subsequent  arrests, 
upon  antecedent  contracts;  and  a  party  can  only  apply  once  in 
two  years.  The  case  cited  from  4  D.  $  E.  447,  has  no  appli- 
cation here.  It  relates  to  a  release  under  the  Lord's  act,  which 
has  no  resemblance  to  our  law.  A  release  there,  is  a  statutable 
payment  of  the  particular  debt,  for  which  the  party  was  exe- 
cuted. 2  Sell.  Prac.  346 

Hence,  there  must  be  a  remedy,  still,  in  favor  of  the  creditor, 
who  had  not  charged  the  debtor  in  execution.  3  Wilson  262. 
1  Term  Rep.  598,  346,  are  cases,  in  which  there  was 
no  obligation  on  the  part  of  the  debtor,  to  pay  at  all;  no 
consideration;  no  right  of  action ;  3  H.  fy  J.  125.  Failure 
of  consideration,  unless  in  cases  of  mala  in  se  vel  prohibita, 
can  only  be  taken  advantage  of  by  immediate  parties  to 
the  contract.  As  to  third  persons,  the  question  is  not 
open.  Where  a  holder  of  a  note  has  given  value,  it  is 
immaterial  whether  the  instrument  was,  originally,  an  accom- 
modation to  another  or  not.  This  is  all  that  3  H.  Sf  J. 
125,  decides.  The  case  before  us  is  altogether  different  from 


OF  MARYLAND.  181 


McElfresh,  adm'r,  vs.  Schley  and  Barr.— 1844. 


that.  The  appellants  were  bound  to  pay  Callan.  On  failuie 
to  pay,  they  were  fixed  as  to  him.  Callan  was  fixed,  as  to 
Washington;  who  might  have  had  two  judgments,  yet  but  one 
satisfaction.  How  then  did  Callan  stand  to  the  makers  after 
judgment?  He  might  pay,  demand  an  assignment  of  Wash- 
ingtorfs  judgment  against  the  appellants,  and  have  it  en- 
tered for  his  use.  Then  Callan  was  bound  to  pay.  Yet  it  is 
argued,  if  he  refused  and  postpones  payment,  he  may  recover. 
But  if  he  does  his  duty  and  pays  promptly,  he  cannot.  This 
cannot  be :  he  is  then  a  creditor,  and  bound  by  the  act  of 
insolvency,  where  legal  and  equitable  creditors  may  all  come  in. 

BY  THE  COURT — 

JUDGMENT  AFFIRMED. 


WILLIAM  M.  BEALL  AND  THERESA  MCELFRESH,  ADM'R.  OF 
JOHN  H.  MCELFRESH,  vs.  GEORGE  SCHLEY,  DAVID  BARR 
AND  CHRISTINA  BARR. —  December,  1844. 

M,  by  his  last  will,  devised  to  one  of  his  three  sisters,  certain  real  estate  in 
fee,  and  constituted  her  his  residuary  legatee,  and  devisee ;  he  bequeathed 
to  her  all  his  "money,  choses  in  action,  and  all  the  rest,  residue,  and  remain, 
der  of  my  (his)  property,  real,  personal  and  mixed,  (not  hitherto  devised  or 
bequeathed,)  of  which  I  am  now  possessed,  or  of  which  I  may  be  possessed, 
at  the  time  of  my  death,  to  her,  her  heirs  and  assigns,  forever."  M.  also  de- 
vised real  and  personal  estate,  in  trust,  for  his  other  two  sisters.  After  the 
publication  of  this  will,  the  testator  purchased  other  real  estate,  and 
died  without  republishing  it.  HELD,  that  the  two  sisters,  who  took 
trust  estates,  could  not  also  claim  as  heirs  at  law,  their  proportion  of  the 
after  acquired  estate  ;  which,  in  this  case  passed  under  the  residuary  clause- 
No  person  will  be  compelled  to  make  an  election  unless  the  intention  of  the 
testator  be  sufficiently  made  out.  There  never  can  be  a  case  of  implied 
election,  but  upon  a  presumed  intention  of  the  testator. 
The  degree  of  intention  necessary  to  raising  a  case  of  election,  must  plainly 

appear  on  the  face  of  the  will. 

Where  a  testator  declares  in  express  terms  his  design  to  make  T.  his  residu- 
ary devisee,  and  explicitly  announces  of  what,  by  devising  to  her  the  re- 
mainder of  the  property  of  which  he  was  then  possessed,  or  of  which  he 
might  be  possessed,  at  the  time  of  his  death;  this  is  evidence  of  his  inten- 
tion to  devise  all  the  estate  of  which  he  might  die  possessed ;  and  upon 
the  equitable  principles  of  election,  is  a  devise  to  that  extent. 


182  CASES  IN  THE  COURT  OK  APPEALS 

McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 

The  doctrine  of  equitable  election  is  as  applicable  to  an  heir  at  law,  as  to 
other  devisees ;  and  may  result,  either  from  an  express,  or  an  implied  con- 
dition. 

A  man  shall  not  take  a  benefit  under  a  will,  and  at  the  same  time  defeat  the 
provisions  of  the  instrument ;  if  he  claims  an  interest  under  it,  ho  must 
give  full  effoct  to  it,  as  far  as  he  is  able.  He  cannot  take  what  is  devised 
to  him,  and  at  the  same  time,  what  is  devised  to  another;  hence,  he  must 
elect  which  he  will  take  of  the  two  devises. 

The  rule,  that  a  will  is  inoperative  to  pass  lands  acquired  after  its  execution, 
will  not  prevent  the  application  of  the  doctrine  of  election. 

Void  wills,  as  of  femes  covert,  or  infants,  do  not  demand  an  election  ;  so  a  will 
not  executed  according  to  the  statute  of  frauds,  creates  no  case  of  election, 
from  implication.  Such  wills  cannot  be  read  as  evidence. 

The  modern  English  cases  do  not  enlarge  the  principle  of  election. 

Tho  court  will  fix  a  time,  in  their  decree,  within  which  a  devisee  bound  to 
elect,  must  make  an  election ;  and  if  the  election  is  not  to  take  the  es- 
state,  in  fact  used  and  enjoyed  under  the  will,  the  court  will  further  decree 
an  account  of  rents  and  profits  of  the  part  so  held  and  used. 

APPEAL  from  the  equity  side  of  Frederick  County  Court. 

The  appellees  in  their  bill  alleged,  that  Caspar  Mantz,  be- 
ing seized  and  possessed  of  a  large  real  and  personal  estate, 
did,  on  the  29th  August  1832,  publish  his  last  will  and  testa- 
ment;  and  about  the  29th  October  1839,  died  without  having 
revoked,  or  in  any  manner  altered  or  changed  his  said  will. 
That  John  H.  McElfresh,  named  in  said  will,  took  upon  him- 
self the  burden  of  executing  all  the  trusts  imposed  upon  and 
confided  to  him  by  said  will;  both  as  the  sole  executor  of 
said  will,  as  also  the  trustee  for  the  several  parties,  devisees, 
and  legatees,  named  in  said  will.  That  in  and  by  said  will  and 
testament,  the  said  testator  did,  among  other  things,  devise 
and  bequeath  to  the  said  John,  &c.,  (for  a  statement  of  which 
devises  and  bequests,  see  the  will  post.)  That  the  said  /.  H. 
McE.,  after  the  death  of  said  testator,  gave  to  your  oratrix, 
Christina  Barr,  wife  of  David  Barr,  full  and  immediate  pos- 
session of  said  farm,  so  devised  to  her  as  aforesaid,  in  compli- 
ance with  the  direction  of  said  testator  ;  and  she  has,  ever  since, 
received  and  enjoyed  the  rents  and  profits  thereof.  He  also 
received  and  paid  over  to  her,  the  dividends  received  by  him 
on  said  bank  stock ;  also,  the  rents  on  the  dwelling  house  of 
said  testator,  and  the  several  lots  of  ground  in  Frederick  town ; 


OF  MARYLAND.  183 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


as  devised  as  aforesaid,  for  the  use  of  your  oratrix.  But  the 
said  McElfresh;  in  his  life  time,  did  not  pay  over  to  your  ora- 
trix any  part  of  the  interest  due  her  on  the  said  sum  of  $32,000 ; 
contending,  that  he  was  not  bound  to  pay  the  same  until  two 
years  after  the  death  of  said  testator ;  that  he  was  entitled  to 
hold  the  said  sum,  free  of  interest,  for  one  year  after  the  death 
of  said  testator ;  so  that  your  oratrix  would  be  entitled  to  re- 
ceive interest  on  said  sum,  from  the  29th  day  of  October  1840, 
and  not  before;  to  which  your  oratrix  objected,  and  the  said 
McElfresh,  therefore,  withheld  from  her  the  said  interest  on 
said  $32,000;  that  the  said  /.  H.  McE.  died  some  time  in  the 
month  of  July  1841,  intestate,  and  that  letters  of  administra- 
tion on  his  goods  and  chattels,  rights  and  credits,  have  been 
granted  by  the  Orphans  court  of  Frederick  county,  to  his  widow, 
Theresa  McElfresh  and  William  M.  Beall,  who  are  acting  as 
such  administrators  ;  your  orator  and  oratrix  further  charge, 
that  the  said  /.  H.  McE.,  in  his  life  time,  received  and  held 
in  his  hands,  for  the  use  of  your  oratrix,  the  interest  on  said 
$32,000  ;  and  that  he  also  received  from  the  assets  of  said  tes- 
tator the  said  principal  sum  of  $32,000,  and  had  the  same  so 
invested  or  loaned,  as  to  produce  and  yield  annually,  the  legal 
interest  of  the  same ;  which  ought  to  have  been,  but  which  was 
not,  paid  over  to  your  oratrix,  during  the  life  time  of  the  said 
J.  H.  McE.;  that  some  time  after  the  death  of  said  /.  H.  McE., 
your  oratrix  applied  to  his  said  administrators  to  pay  her  over 
the  dividends  on  said  bank  stock,  that  had  accrued  in  part, 
and  had  not  been  paid  over  to  her  in  the  life  time  of  said  intes- 
tate, and  which  had  in  part  accrued  since  his  death  ;  as  also  to 
pay  over  to  her  certain  rents  that  had  become  due  on  the  real 
property  lying  in  Frederick  town  ;  and  also  the  interest,  due  to 
her  under  the  will  of  her  said  brother,  on  the  said  sum  of 
$32,000  ;  but  they  refused  payment  of  any  part  to  her ;  saying, 
that  any  payment  to  be  made  by  them,  must  be  made  to  who- 
ever might  be  appointed  the  trustee  for  your  oratrix,  in  the  place 
and  stead  of  the  said  J.  H.  McE.,  deceased.  That  your  ora- 
trix being  much  in  want  of  the  money,  which  her  brother's 
bounty  had  so  kindly  provided  for  her,  immediately  filed  her  pe- 


184  CASES  IN  THE  COURT  OF  APPEALS 

McElfresh,  adm'r,  vs.  Schley  and  Barr.— 1844. 

tition,  together  with  her  husband,  in  this  honorable  court ;  and 
obtained  an  order  appointing  George  Schley  her  trustee,  to  act 
in  the  place  and  stead  of  the  said  J.  H.  McE.,  in  regard  to 
said  trusts ;  that  said  George  Schley  has  accepted  said  trust ; 
that  the  said  G.  S:  as  trustee,  as  aforesaid,  in  the  place  and 
stead  of  J.  H.  McE.,  and  by  virtue  of  said  order,  called  on 
said  administrators  of  said  McElfresh,  to  pay  into  his  hands, 
for  the  use  of  your  oratrix,  according  to  the  provisions  and  di- 
rections of  said  last  will  of  said  Caspar  Mantz,  the  $32,000,  in 
cash,  with  all  the  interest  due  thereon  ;  as  also  the  rents  of  the 
real  estate,  and  the  dividends  on  the  said  bank  stock,  that  had 
been  received  by  the  said  J.  H.  McE.  in  his  life  time  ;  but  had 
not  been  paid  over  to  your  oratrix,  the  said  Christina,  by  him. 
That  the  said  administrators  did  pay  over  to  said  George  Schley^ 
as  trustee  for  your  oratrix,  the  rents  and  dividends  on  the  bank 
stock  received  by  said  J.  H.  McE.,  as  also  the  sum  of  $28,000, 
in  part  of  the  said  principal  sum  of  $32,000;  and  the  sum  of 
$2426.66,  as  interest  on  said  $32,000,  from  the  29th  day  of 
October  1840,  being  one  year  after  the  death  of  said  testator, 
up  to  the  3rd  day  of  February  1842  ;  that  being  the  day  on 
which  the  payment  was  made  to  your  orator,  the  said  George 
Schley.  But  the  said  administrators  refused  to  pay  the  re- 
maining $4000,  of  the  said  principal  sum,  to  the  said  G.  S.; 
and  now  hold  the  same  in  their  hands,  and  refuse  to  pay  it 
over  for  the  benefit  of  your  oratrix,  until,  as  they  say,  your  ora- 
trix and  her  said  husband  will  unite  in  a  deed  of  conveyance : 
by  which,  they  will  convey  and  release  to  the  said  T.  McE.,  as 
the  residuary  devisee  in  said  will,  all  their  estate,  right,  title, 
and  interest  both  at  law,  and  in  equity,  in  and  to  a  certain  farm 
or  tract  of  land,  known  as  the  "Kenegafarm  ;"  and  which  said 
land  was  purchased,  by  and  conveyed  to,  the  said  Caspar Mantz, 
some  considerable  time  after  he  had  made  and  executed  his 
said  last  will  and  testament.  This  conveyance  your  oratrix  is 
unwilling  to  make,  believing,  as  she  is  indeed  advised,  that  the 
said  testator  died  intestate,  as  to  the  said  land  so  purchased 
by  him,  after  he  had  made  his  said  will,  and  that  the  same  will 
descend  to  his  heirs  at  law,  of  whom  your  oratrix  is  one ;  and 


OF  MARYLAND.  185 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


that  your  oratrix  is  under  no  obligation,  legal  or  equitable,  to 
forego  her  rights  as  one  of  the  heirs  at  law,  of  her  said  brother, 
to  said  farm,  to  enable  her  to  receive  and  enjoy  the  whole 
bounty  intended  for  her,  and  given  to  her  by  his  said  last  will 
and  testament.  But  now  so  it  is,  &c.  Prayer,  for  subpoena 
against  the  appellants,  and  for  relief,  &c. 

Caspar  Manlz  devised  as  follows  : 

"1st.  I  devise  and  bequeath  to  John  H.  McElfresh,  his  heirs 
or  assigns,  for  the  purposes,  uses,  and  trusts,  hereinafter  men- 
tioned, 222  acres  of  land,  more  or  less,  being  part  of  "Locust 
Level,"  &c.;  and  $10,000,  money,  now  in  the  hands  of  /.  H. 
McE.,  bearing  interest,  &c.     It  is  my  wish  and  desire,  and  I 
do  so  order  and   direct,  that  the  nett  profits  arising  from  the 
aforesaid  farm  of  222  acres,  after  deducting  what  is  necessary 
to  keep  said  farm  and  the  buildings  thereon  in  good  repair, 
together  with  the  interest   arising  after  my  death  from  the 
$10,000,  of  three  per  cent  funds,  in  the  hands  of  J.  H.  McE., 
and  the  $5000  in  cash  as  aforesaid,  shall  be  invested  in  some 
good  funds,  at  the  discretion  of  the  said  J.  H.  McE.     I  further 
order  and  direct,  that  the  said  J.  H.  McE.  shall  pay  over  to  my 
sister  Eleanor,  out  of  the  nett  proceeds  of  the  real  and  per- 
sonal estate,  above  devised,  during  the  life  of  her  husband,  as 
much  as  the  said  J.  H.  McE.  may  think  necessary  for  the 
comfort  of  my  said  sister  Eleanor,  and  her  children  ;  but  in  no 
event  to  suffer  any  part  of  said   proceeds  to  go  into  her  hus- 
bands hands.   And  any  receipt  or  acquittance  which  my  sister 
Eleanor,  though  covert,  shall  execute,  &c.     I  further  direct, 
that  should  my  sister  Eleanor  outlive  her  husband,  that  the 
nett  proceeds  of  the  land,  and  money,  and  cash,  hereinbefore 
mentioned,  shall  be  paid,  semi-annually,  to  my  sister  Eleanor, 
&c  ;  and   all  the  nett  proceeds  and   increase  of  the  said  real 
and  personal  estate,  which  may  be  in  the  hands  of  the  said  /. 
H.  McE.  at  the  death  of  my  sister  Eleanor,  shall   be  equally 
divided  between  her  children,  share  and  share  alike  ;  but  should 
any  of  her  said  children  have  died,  before  said  division  shall 
be  made,  and  left  children,  the  said  children  shall  be  entitled 
to  their  mother's  or  father's  share,  as  the  case  may  be.     But 
24         v.2 


186  CASES  IN  THE  COURT  OF  APPEALS 


McElfresh,  adm'r,  vs.  Schley  and  Barr.— 1844. 


no  division,  as  aforesaid,  shall  be  made  during  the  life  of  my 
sister  Eleanor's  husband,  nor  until  her  youngest  child  shall 
attain  the  age  of  twenty-one  years.  If  in  the  course  of  events, 
it  should  become  necessary  for  the  said  John  H.  McElfresh  to 
make  a  disposition  of  his  worldly  affairs,  I  hereby  authorize 
and  empower  him  to  appoint  some  trusty  friend  to  carry  into 
effect  my  wishes  and  directions,  respecting  the  devises  and 
legacies  hereinbefore  mentioned,  and  to  allow  him  such  com- 
pensation as  he  may  think  proper. 

2nd.  I  hereby  devise  and  bequeath  to  «/.  H.  McE.,  his  heirs 
or  assigns,  for  the  purposes,  uses  and  trusts  hereinafter  men- 
tioned, 454|-  acres  of  land,  more  or  less,  &c.  It  is  my 
will  and  desire,  and  I  do  so  order  and  direct,  that  immediately 
after  my  decease,  my  sister  Christina  shall  go  into  the  posses- 
sion of  the  aforesaid  farm  of  454£  acres,  have  and  enjoy  the 
whole  productions  and  profits  thereof.  It  is  my  will  and  de- 
sire, and  I  do  so  order  and  direct,  that  all  the  other  property 
hereinbefore  mentioned,  save  what  is  put  in  trust  for  my  sister 
Eleanor,  shall  be  in  the  hands  of  the  said  John  H.  McElfresh, 
in  trust ;  the  said  John  H.  McElfresh  is  to  receive  and  collect 
all  the  nett  proceeds  of  said  real  and  personal  estate ;  and  the 
same,  together  with  all  the  interest  on  bank  stock  and  other 
funds,  he  shall  pay  over  to  my  sister  Christina,  to  her  own 
separate  use,  during  her  natural  life,  whether  she  be  covert  or 
sole;  and  any  receipt  or  acquittance  of  my  said  sister  Christina, 
though  covert,  given  to  the  said  John  H.  McElfresh,  touching 
the  trusts  hereinbefore  mentioned,  shall  be  as  valid  in  law  as 
if  she  was  sole.  And  further,  it  is  my  will,  and  I  do  so  order 
and  direct,  that  after  the  death  of  my  said  sister  Christina,  all 
the  real  estate  hereby  devised  to  the  said  John  H.  McElfresh 
in  trust,  for  my  sister  Christina,  shall  be  sold  ;  and  I  do  hereby 
authorize  and  empower  the  said  John  H.  McElfresh  to  convey 
the  same  as  fully  as  I  could  do,  and  the  proceeds  arising  from 
said  real  estate,  together  with  the  bank  stocks  and  other  funds, 
and  the  increase  thereof,  herein  devised  in  trust,  for  the  benefit 
of  my  sister  Christina,  shall  be  equally  divided  among  the 
children  of  my  sister  Christina,  that  may  be  then  living,  share 


OF  MARYLAND.  187 


McEIfresh,  adm'r,  vs.  Schley  and  Barr.— 1844. 


and  share  alike;  and  should  any  one,  or  more,  of  her  said  chil 
dren  have  died  before  said  division,  then  the  child  or  children, 
of  such  child  or  children,  shall  come  in  for  the  same  share  that 
the  mother  or  father  would  have  been  entitled  to,  if  living. 
Provided,  and  it  is  my  will  and  desire,  that  no  sale  or  division 
of  the  real  and  personal  property,  herein  devised  and  bequeathed 
to  John  H.  McEIfresh)  in  trust,  for  my  sister  Christina  and  her 
children,  shall  be  made,  until  her  youngest  child  arrive  to  the 
age  of  twenty-one  years. 

3rd.  I  devise  and  bequeath  to  my  sister  Theresa,  to  her,  her 
heirs  and  assigns,  forever,  all  the  following  property,  to  wit: 
all  that  tract  of  land,  being  part  of  a  tract  of  land  called 
"Tasker's  Chance,"  &c.,  to  her  my  said  sister  Theresa, 
her  heirs  and  assigns  forever. 

4th.  It  is  my  will  and  desire,  and  I  do  so  order  and  direct, 
that  my  sister  Theresa  shall  pay  to  Catharine  Clark,  a  free 
coloured  woman,  $100  in  quarterly  payments  of  $25  each,' in 
advance,  during  her  natural  life.  There  is  a  chest  of  home 
made  linen  in  my  house,  if  there  should  be  any  of  it  left  at 
the  time  of  my  death,  it  is  my  wish  that  it  shall  be  equally 
divided  between  my  three  sisters,  Eleanor,  Christina,  and  The- 
resa. And  furthermore,  I  do  hereby  make  and  constitute  my 
said  sister  Theresa,  my  residuary  legatee  and  devisee  ;  and  do 
hereby  give  and  bequeath  to  her  all  my  money,  choses  in  ac- 
tion, and  all  the  rest,  residue  and  remainder,  of  my  property, 
real,  personal,  and  mixed,  (not  hereinbefore  devised  or  be- 
queathed,) of  which  I  am  now  possessed,  or  of  which  I  may 
be  possessed  at  the  time  of  my  death,  to  her,  my  said  sister 
Theresa,  her  heirs  and  assigns  forever.  And  finally,  I  do  here- 
by make,  constitute,  and  appoint  John  H.  McEIfresh,  my  whole 
and  sole  executor  of  this,  my  last  will  and  testament;  and  I 
do  revoke  and  annul  all  former  wills  heretofore  made  by  me, 
relying  on  his  honesty  and  integrity  to  carry  this,  my  last  will 
and  testament,  into  full  and  complete  effect.  In  testimony 
whereof,  I  have  set  my  hand  and  affixed  my  seal,  this  29th 
August  1832.  CASPAR  MANTZ,  (Seal.) 


188  CASES  IN  THE  COURT  OF  APPEALS 

McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 

The  defendants,  William  M.  Beall  and  There&a  McElfresh) 
in  their  answer  declare,  that  they  admit  that  Caspar  Mantz  did, 
on  the  29th  day  of  August  1832,  make  and  execute  his  last 
will  and  testament  in  due  form  of  law,  a  true  copy  of  which 
is  exhibited  as  a  part  of  the  complainants  bill,  and  that  the 
said  C.  M.  died  in  the  latter  part  of  October  1839,  without 
having  revoked  said  will.  That  John  H.  McElfresh,  who  was 
named  in  said  will  as  executor  and  trustee,  to  take  charge  of 
the  estate  of  said  Caspar  Mantz,  accepted  the  trust  reposed  in 
him,  and  as  to  the  true  character  and  legal  and  equitable  con- 
struction of  the  trust  reposed  in  the  said  John  H.  McElfresh, 
these  defendants  submit  themselves  to  the  determination  of  this 
honorable  court.  That  the  said  Caspar  Mantz,  after  the  mak- 
ing and  executing  said  last  will,  purchased  a  tract  of  land  of 
a  certain  Joseph  Kenega,  and  obtained,  therefor,  a  deed  of  con- 
veyance, a  true  and  certified  copy  thereof  is  here  exhibited  as 
a  part  of  this  answer ;  and  that  the  said  Caspar  Mantz,  died, 
the  owner  of  said  land  and  premises,  contained  and  specified 
in  said  c'eed  from  Joseph  Kenega.  And  these  defendants  state 
further,  for  answer,  that  the  said  Christina  Barr,  one  of  the 
devisees  and  legatees  aforesaid,  and  her  trustee  George 
Schley,  esq.,  claim  to  receive  the  whole  of  the  devises  and 
legacies  given  to  the  said  Christina  Barr,  by  the  said  C.  M.; 
and  the  said  Christina  Barr,  as  one  of  the  heirs  at  law  of  C. 
M.,  also  claims  one-third  of  the  said  land  and  premises,  so, 
as  aforesaid,  conveyed  to  the  said  C.  M.,  after  the  making  and 
executing  said  will;  without  relinquishing  or  giving  up  any 
part  of  the  testators  bounty,  given  by  said  will  to  the  said  The- 
resa McElfresh,  the  residuary  devisee  and  legatee.  'I  hese  de- 
fendants are  advised,  that  the  said  Christina  Barr  will  not  be 
permitted,  according  to  the  rules  of  a  court  of  equity,  to  take 
both  under  and  against  the  will  of  Caspar  Mantz;  but  that  she 
will  be  bound,  according  to  the  well  settled  rules  in  a  court  of 
equity,  to  elect  which  she  will  take.  These  defendants  further 
state,  for  answer,  that  they  are  advised  that  they  are  not  bound 
in  equity,  to  pay  any  more  of  the  legacies  bequeathed  to  the  said 
Christina  Barr  to  George  Schley  esq.,  her  trustee,  until  the 


OF  MARYLAND.  189 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


said  Christina  make  her  election,  to  take  under  the  will  and 
release  all  right  she  may  have,  if  she  have  any,  to  the  said  land 
and  premises  commonly  called  the  " Kenega  farm ;"  and  they 
also  state,  that  the  said  Christina  Barr  claims  both,  the  bounty 
of  the  testator  under  the  will,  and  a  proportion  of  the  after  ac- 
quired land  and  premises  commonly  called  the  il  Kenega  farm;" 
which  they  refuse  to  yield,  until  the  question  of  election  is 
finally  determined  by  this  honorable  court,  as  a  court  of  equity. 
These  defendants  further  state,  for  answer,  that  they  admit  that 
the  said  John  H.  McElfresh  is  dead,  and  that  he  died  intestate, 
and  that  these  defendants  obtained  letters  of  administration 
from  the  Orphans  court  of  Frederick  county,  on  the  estate  of 
the  said  John  H.  McElfresh,  deceased. 

The  residue  of  this  answer  not  being  deemed  material  to 
illustrate  this  case,  as  decided,  is  omitted  by  the  reporter. 

After  the  general  replication,  the  parties  filed  an  agreement 
showing  what  had  been  done  under  the  trusts  of  C.  M's  will ; 
and  that  a  pro  forma  decree  be  passed  by  the  court  for  the  pur- 
pose of  taking  the  case  to  the  Court  of  Appeals,  to  determine 
and  settle  the  questions  submitted  to  the  court  upon  the  follow- 
ing propositions,  viz  : 

In  this  case,  if  the  court  shall  be  of  opinion  that  George 
Schley,  esq.,  as  the  trustee  of  C.  B.,  is,  according  to  the  doc- 
trine of  a  court  of  equity,  entitled  to  take  and  receive  under 
and  by  virtue  of  the  will  of  C.  M.,  the  whole  and  entire  pro- 
perty and  money  devised  and  bequeathed  to  J.  H.  McE.,  in 
trust,  for  the  said  Christina  Barr,  and  she  to  take  and  hold  her 
proportion  as  one  of  the  heirs  at  law  of  C.  M.,  deceased,  of 
the  land  and  premises  specified  in  the  deed  from  Joseph  Kenega 
to  the  said  Caspar  Mantz,  and  that  the  said  Christina  Barr  and 
her  said  trustee  can,  according  to  the  rules  and  principles  of  a 
court  of  equity  in  this  State,  receive  and  claim  under  the  cir- 
cumstances of  this  case,  all  the  property  devised  and  bequeathed 
in  trust  for  her,  and  also  as  heir  at  law  of  C.  M.,  deceased,  one- 
third  part  of  the  said  land  and  premises  aforesaid,  purchased 
of  Joseph  Kenega  by  the  said  C.  M.,  after  the  making  and  exe- 
cuting his  will,  without  being  put  to  elect,  which  she  will  take  ; 


190  CASES  IN  THE  COURT  OF  APPEALS 

McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 

then,  and  in  that  case,  the  court  will  pass  an  unconditional 
decree,  ordering  and  directing  the  said  Wm.  M.  Beall  and 
Theresa  McElfresh  as  the  administrators  of  J.  H.  McE.,  de- 
ceased, to  pay  to  the  said  G.  S.  as  the  trustee  of  C.  B.,  the 
sum  of  $4000,  with  the  interest  thereon,  from  the  3rd  day  of 
February  1842,  as  the  balance  of  the  trust  funds  which  were 
in  the  hands  of  J.  H.  McE,,  as  trustee  for  said  Christina  Barr, 
at  the  time  of  his  death. 

But,  on  the  contrary,  if  the  court  shall  be  of  opinion,  under 
all  the  circumstances  of  this  case,  that  the  said  C.  B.  cannot, 
by  the  said  trustee,  according  to  the  principles  of  a  court  of 
equity,  take,  and  rightfully  claim,  all  the  property  and  money 
devised  and  bequeathed  to  her  by  the  said  C.  M.,  and  also,  as 
heir  at  law  of  C.  M.,  a  proportion  of  the  land  and  premises 
specified  in  the  said  deed  from  Joseph  Kenega  ;  and  that  this 
case  is  one  in  which  the  said  C.  B.  ought  to  be  put  to  her  elec- 
tion, whether  she  will  take  the  property  bequeathed  and  devised 
in  trust  for  her,  by  the  said  C.  M.,  in  and  by  his  last  will ;  or 
whether  she  will  take,  as  one  of  the  heirs  at  law  of  said  C. 
M.,  deceased,  her  proportion  of  the  land  and  premises  pur- 
chased by  the  said  C.  M.  after  the  making  and  executing  said 
will  of  the  said  Joseph  Kenega,  and  that  she  cannot  have  and 
claim  both.  Then,  and  in  that  case,  the  court  will  make  such 
a  decree  in  the  premises,  as  shall  to  the  court  seem  just  and 
equitable,  and  in  accordance  with  the  doctrine  of  election  ;  and 
to  have  the  same  effect  as  if  a  cross  bill  in  this  case  had  been 
filed,  to  compel  the  said  Christina  Barr  and  her  trustee  to  make 
their  election,  how  they  will  take,  &c. 

On  the  4th  day  of  October  1843,  Frederick  county  court, 
as  a  court  of  equity,  (MABSHALL,  A.  J.)  decreed,  that  Wil- 
liam. M.  Beall)  and  Theresa  McElfresh,  as  the  administrators 
of  J.  H.  McE.,  deceased,  pay  to  George  Schley,  as  the  trustee 
of  C.  J5.,  or  bring  into  this  court,  to  be  paid  to  him,  the  sum 
of  $4000,  and  the  interest  thereon,  from  the  3rd  day  of  Fe- 
bruary 1842.  And  it  is  further  ordered,  adjudged,  and  decreed, 
that  the  said  Christina  Barr  is  entitled  to  claim  and  hold,  by 
her  said  trustee,  all  the  property  devised  and  bequeathed  in 


0V  MARYLAND.  191 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


trust  for  her  by  Caspar  Mantz,  in  his  last  will  and  testament. 
And  also,  she  is  entitled  to  hold  and  claim  as  one  of  the  heirs 
at  law  of  the  said  Caspar  Mantz,  deceased,  her  undivided 
third  part  of  the  land  and  premises,  purchased  by  the  said 
Caspar  Mantz,  after  the  making  and  executing  his  last  will  and 
testament  of  a  certain  Joseph  Kenega,  specified  and  described 
in  the  deed  of  said  land,  exhibited  in  this  case  by  the  defen- 
dants, as  a  part  of  their  answers. 

The  defendants  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  CHAMBERS,  SPENCE, 
STONE  and  SEMMES,  J. 

By  PALMER  for  the  appellants. 

In  a  court  of  equity,  can  one  take  under  a  will,  and  against 
it?  Can  he  so  defeat  the  intent  of  the  testator?  Real  pro- 
perty, acquired  after  the  execution  of  a  will,  vests  in  the  heirs 
of  law  of  the  testator.  Personal  property,  in  the  executor. 
We  admit,  that  after  acquired,  real  property,  does  not  pass 
under  a  general  devise,  in  a  will.  The  language  of  the  Stat. 
Hen.  8,  has  secured  that  construction.  Yet  the  law  of  Eng- 
land adopts  the  rule,  that  one  cannot  take  under,  and  repudi- 
ate the  same  will.  Then,  does  the  equitable  doctrine  of  elec- 
tion apply  here  ?  Does  it  apply  at  all  ?  Does  it  apply  to  an 
heir  at  law?  Dillon  vs.  Parker,  1  Swanst.  C.  R.  359. 
2  Stor.  Eq.  335,  393,  395. 

An  election  is  between  two  independent  alternatives.  2  Stor. 
Eq.  355.  Infants  and  femes  covert  may  be  compelled  to  elect. 
Snelgrove  vs.  Snelgrove,  4  Dessaus,  294,  300.  Upshaw  vs. 
Upshaw,  2  Hen.  and  Mumf.  381. 

Exceptions  to  the  rule  of  election :  wills  of  infants  ;  wills 
not  executed  according  to  the  statute  of  frauds.  Dillon  vs. 
Parker,  1  Swanst.  405,  note.  Hearle  vs.  Greenbank,  1  Ves. 
Sen.  306,  307.  Sheddon  vs.  Goodrich,  8  Ves.  Jr.  496. 
1  Cox,  note  241. 

The  exceptions  relate  to  inoperative  or  void  wills.  The 
intention  of  the  testator  is  not  matter  of  proof.  1  Dev.  635. 


192  CASES  IN  THE  COURT  OF  APPEALS 

McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 

On  the  rule  and  its  application,  he  cited  Lady  Cavan  vs. 
Pulteney,  2  Ves.  Jr.  560.  Wilson  vs.  Lord  John  Townshend, 
Ib.  696,  697.  Ward  vs.  Baugh,  4  Ves.  Jr.  623.  1  Pow.  Dev. 
255,  436.  Hixonvs.  Oliver,  13  Ves.  111.  Wetby  vs  Welby, 
2  Ves.  fy  Beam.  199.  4  Kent.  Com.  510.  3  Doug.  361. 
Churchman  vs.  Ireland,  1  Russ.  Sf  Mylne,  250.  2  Sto.  Eq. 
356.  6  Cruise  Dig.  17,  21.  3%.  Deri.  20,  26.  Bun- 
ker vs.  Cooke,  1  Bro.  Parl.  Cases,  199.  Churchman  vs.  Ire- 
land, 6  Con.  Eng.  Chan.  Rep.  237.  16.  4  Simons,  520. 
Thelussonvs.  Woodford,  13  Fes.  Ill,  is  the  very  case  at  bar. 

WILLIAM  SCHLEY  for  the  appellee. 

The  intention  of  the  testator  must  govern  ;  arguments  and 
opinions  to  show  that  intent,  result  from  the  will  itself.  4 
Kent,  410. 

A  will  resembles  a  conveyance.  It  cannot  pass  after 
acquired  lands.  Not  having  title,  the  testator  cannot  pass 
them.  Skep.  Touch.  438.  Kemp  vs.  McPherson,  7  Har. 
&  John.  335. 

The  complainants  concede,  that  the  land  in  controversy 
descended  to  the  heir  at  law.  The  three  sisters  are  entitled 
as  heirs  at  law.  The  term  residue,  refers  to  time  of  making 
the  will.  Brailsford  vs.  Heyward,  2  Dessau,  33.  Van  Kleeck 
vs.  The  Reformed  Dutch  Church,  6  Paige,  C.  R.  600,  and 
relates  to  what  is  not  previously  disposed  of,  as  to  real  pro- 
perty ;  as  to  personal  estate,  it  relates  to  the  death  of  the  tes- 
tator. Oke  vs.  Heath,  1.  Ves  Sen.  141.  Cambridge  vs. 

O 

Rous,  8  Ves.  Jr.  25.    Thelussonvs  will  did  not  affect  a  residue. 

Where  property  is  given  to  A,  and  also  to  B,  and  B  takes 
not  only  what  is  granted  to  him,  but  also  that  which  is 
granted  to  A,  and  against  the  intent  of  the  grant  which  creates 
both  estates;  on  the  doctrines  of  compensation,  an  election 
between  the  two  parcels  is  enforced,  and  B  not  permitted  to 
take  both  :  for  one  cannot  claim  under  any  instrument,  with- 
out giving  full  effect  to  it.  2  Rop.  Leg.  378,  386,  389. 

Election  arises  upon  grants  of  property  by  mistake,  but  a 
residuum  relates  to  real  property  devised,  retained  until  the 


OF  MARYLAND.  193 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


testator's  death.     1  Pow.  Dev.  264,  note  7.    Smith,  et.al.,  vs. 
Edrington,  8  Cranch,  68,  97. 

It  does  not  relate  to  future  acquisitions.     Johnson  vs.  Tel- 
ford,  4  Con.  Ch.  Rep.  409. 

The  fact  is  stated  in  all  the  cases,  that  the  testator  had  un- 
dertaken to  deal  with  that,  which  did  not  belong  to  him.  To 
raise  a  case  of  election,  an  intent  to  give  that  which  is  not 
the  grantor's  own  property,  must  exist.  Churchman  vs.  Ire- 
land, 6  Eng.  Chan.  Rep.  237,  is  stronger  than  the  case 
at  bar.  Ib.  4  Con.  Eng.  Chan.  Rep.  409,  412.  1  Russ.  & 
Mylne,  244.  Welby  vs.  Welby,  2  Ves.  &  Bea.  187,  an  heir 
was  put  to  his  election,  between  lands  devised,  and  lands 
by  descent.  The  English  cases  are  all  fully  examined.  In 
the  City  of  Philadelphia  vs.  Davis,  1  Wharton,  490.  Girard, 
et  al.,  vs.  City  of  Philadelphia,  4  Rawle.  323.  Cases  of  doubt 
do  not  constitute  cases  of  election. 

The  fact  that  two  have  differed  about  the  construction  of  a 
will,  show  it  not  to  be  a  case  of  election.  Broome  vs  Monck. 
19  Ves.  609.  Gilb.  Eq.  Cases,  15. 

There  is  an  implied  condition  in  all  cases  of  election,  that 
devisee  will  not,  and  ought  not,  to  claim  both  estates.  The 
case  of  Thelusson  and  Woodford,  does  not  affect  this  cause, 
which  is  within  Back  and  Kett,  Jacob,  534,  and  decided  by  it. 

Then  who  is  to  exercise  the  right  of  election  here  ?     The 
feme  covert1?  or^her  trustee  for  her  ?  or  the  heirs  at  law  ?     2 
Rop.  on  Leg.  430. 

The  heirs  at  law  are  entitled  to  all  undisposed  of  estates. 
Sir  Thomas  Jones,  112,  114.  8  Modern,  90. 

All  the  decided  cases  are  before  the  court.  The  doctrine  of 
election  is  founded  on  clear,  and  unquestioned  law.  To  de- 
vises on  express  condition,  it  will  of  course  apply.  So  of  im- 
plied conditions  :  benefits  to  A  and  B  ;  the  grant  to  B,  being 
of  A's  property  ;  an  implied  condition  not  to  take  both.  So 
where  one  has  power  over  two  estates,  grants  one  to  A,  and 
makes  an  ineffectual  attempt  as  to  B.  There  A  must  elect 
upon  principles  of  equity.  It  would  be  against  conscience  no* 
25  v.2 


194  CASES  IN  THE  COURT  OP  APPEALS 

McElfresh,  adm'r,  vs.  Schlcy  and  Barr. — 1844. 

to  carry  out  devise  lo  both.  Such  is  the  case  of  Thelusson  vs. 
Woodford.  But  this  case  is  clear  of  all  previously  decided 
causes.  Mrs.  Barr  has  nothing  but  the  rents  and  profits ;  no 
part  of  the  corpus  of  her  estate  ;  after  her  death  the  estate  goes 
to  her  children. 

P.  J.  T.  had  the  whole  legal  estate,  and  claimed  another 
estate,  which  disappointed  the  will :  claiming  one  estate  un- 
der the  will,  he  could  not  claim  the  other  estate  in  opposition 
to  it.  If  he  claim  the  other  estate,  he  could  not  claim  under 
the  will.  Here  the  trustee  of  the  fund  claims  :  it  is  not  Mrs. 
Barr ;  she  does  not  take  under  the  will.  We  do  not  set  up 
legal  rights  in  opposition  to  equity  :  Mrs.  B.  has  no  power  to 
burthen  the  estate,  sell,  or  dispose  of  it ;  the  trust  fund  can- 
not be  a  question  in  any  way  ;  the  right  of  election  must 
arrest  the  determination  of  her  estate  ;  the  thing  devised, 
must  be  capable  of  alienation. 

REVERDY  JOHNSON  in  reply. 

Mrs.  Barr  must  be  entitled  to  one  third  of  the  estate,  at 
common  law.  There  is  one  question,  peculiar  to  the  case 
itself,  i.  e.,  what  is  the  true  interpretation  of  the  will,  which 
shuts  out  the  heir  at  law?  Looking  to  the  whole  character  of 
this  devise,  at  the  time  the  will  was  executed,  it  is  clear,  the 
testator  did  not  design  to  die  intestate,  of  either  his  real  or 
personal  estate.  If  intestate,  as  to  the  farm  in  controversy,  it 
must  be  attributable  to  ignorance,  in  fact,  of  the  effect  of  the 
devise.  As  far  as  relates  to  Mrs.  Barr  and  Mrs.  Harding, 
the  testator  did  not  intend  to  vest  in  them,  absolutely,  any 
interest  in  his  estate,  so  as  to  subject  it  to  their  husbands 
power.  We  are  not  left  to  speculate  about  this.  The  testator 
knew  how  to  devise  absolute,  and  qualified  estates,  so  as  to 
keep  them  clear  of  their  husbands.  The  whole  will  designed 
testacy,  and,  to  avoid  intestacy.  That  is  manifest  in  fact;  or, 
why  did  he  put  the  words  in  the  last  clause  ?  All  he  then  had, 
must  pass.  These  words  were  put  to  enlarge  antecedent 
phrases ;  to  include,  what  they  might  not  embrace.  They  are 
not  surplussage ;  they  have  an  independent  meaning  :  and 


OF  MARYLAND.  195 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


they  meant,  that  all  the  estate  he  possessed,  at  the  time  of  his 
death,  should  go  to  the  residuary  legatee. 

As  to  personal  and  mixed  estate,  the  will  operates  upon  all; 
and  the  words  used,  put  the  real  estate  on  same  footing  ;  show 
the  same  state  of  mind  as  to  both.  The  meaning  is,  all  I  have 
now,  or  may  have,  at  my  death.  He  meant,  that  Mrs.  McEl- 
fresh should  take  under  the  will,  and  not  as  heir.  All  who 
take  under  the  will,  must  admit  this.  As  respects  the  devisees, 
the  intent  was,  that  all  of  them  should  take  under  the  will. 
Dillon  vs.  Parker,  1  Swanst.  397,  note,  2  Story  Eg.  339. 

The  doctrine  of  election,  is  more  ancient  than  the  case  in 
Vernon.  It  may  be  traced  back  to  Elizabeth.  It  arises,  most 
frequently,  under  wills  ;  yet  is  applicable  to  deeds.  Its  justice 
is  recognized  everywhere.  A  devisee  is  estopped  to  deny  the 
testator's  power  to  devise.  He,  who  claims  any  part,  must 
admit  the  residue.  The  right,  under  grants,  rests  on  the  same 
footing.  It  is  like  lessor  and  lessee  ;  the  latter  cannot  deny 
title  to  make  the  lease. 

As  to  the  two  devises,  to  Mrs.  Barr  and  Mrs.  Harding,  being 
in  trust  for  life,  remainder  to  the  children  ?  Mrs.  Barr  has 
made  her  acceptance  of  the  life  interest,  and  she  now  disputes 
as  to  the  Kenega  farm.  The  children  have  nothing  to  do  with 
this  controversy.  The  limited  character  of  the  interest  cannot 
change  the  principle.  As  she  takes  the  trust  estate,  she  is 
estopped  from  relying  on  her  rights  as  heir  at  law. 

A  will,  not  executed  in  conformity  with  the  statute  of  frauds, 
is  still  good  as  to  personalty.  There,  the  terms  of  the  legacy 
must  be  complied  with.  Welby  vs.  Welby,  2  Ves.  Sf  Bea.  190. 

The  rule,  for  which  we  contend,  has  never  been  questioned, 
from  Elizabeth  to  the  present  time,  and  is  equally  applicable  to 
an  heir  at  law,  as  to  other  parties.  Thelusson?s  case  has  never 
been  doubted.  Its  demonstrative  reasoning  is  conclusive. 

2  Vernon,  581,  (1706,)  announces  the  general  rule.  It  related 
to  devises  of  fee  simple,  and  fee  tail  estates,  among  children. 
Upon  an  implied  condition,  acquittances  were  decreed,  inter 
se.  Forrester  176.  Ambler  338.  Wilson  vs.  Lord  John  Town- 
shend,  2  Ves.  Jr.,  196.  Birgmingham  vs.  Kirwnn,  2  Scho.  # 
Lef.  449.  2  Sto.  Eq.  338,  note. 


196  CASES  IN  THE  COURT  OF  APPEALS 

McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 

A  will,  devising  to  an  heir  at  law  the  same  estate  which 
would  descend  to  him,  does  not  operate  at  all ;  but  if,  in  the 
same  will,  the  testator  devises  an  estate  to  another,  then  the 
part  devised  to  the  heir,  operates,  upon  condition  that  he  gives 
efficacy  to  the  will.  Freke  vs.  Lord  Barrington,  3  Bro.  C.  R. 
285,  note.  Newman  vs.  Newman,  1  Bro.  C.  R.  186.  Wolhn 
vs.  Tanner,  5  Ves.  Jr.,  218.  Blount  vs.  Bestland,  5  Ves.  Jr., 
515.  Pettiward  vs.  Prescott,  7  Ves.  Jr.,  541.  Broome  vs. 
Monck,  10  Ves.  Jr.,  609,  616. 

The  rule  is  stated  as  a  rule  of  law,  applicable  to  all  persons, 
and  all  classes  of  persons. 

The  case  Thelusson  vs.  Woodford,  13  Ves.  209,  embraces 
the  contest  at  bar. 

To  accept  the  benefit,  while  he  declines  the  burthen  im- 
posed, is  a  fraud  on  the  design  of  the  donor. 

Crosbie  vs.  Murray,  1  Ves.  Jr.,  557,  559.  All  the  provi- 
sions of  the  will  ought  to  be  conformed  to.  This  principle 
covers  every  variety  of  case,  to  which  its  justice  is  applicable. 
The  cause  of  failure  is  immaterial.  Courts  look  to  the  will,  for 
the  purposes  of  the  devisor  to  do  justice  between  co-legatees. 

The  rule  can  only  apply  to  a  defective  will :  a  grant  of  no 
title.  The  true  owner  of  the  benefit  must  elect,  to  give  up 
his  own  as  the  law  awards  it,  or  the  benefit  devised,  as  the  tes- 
tator granted  it.  It  is  enough,  here,  if  the  testator  intended 
to  pass  Kenega  farm,  though  it  was  after  acquired  land. 

The  doctrine  of  election,  is  a  rule  of  law,  established  for  the 
sole  design  of  promoting  justice  ;  of  disposing,  equitably,  of 
all  the  devises  in  a  will ;  is  irrespective  of  parties  ;  and  must 
apply,  with  most  force,  to  the  testator's  own  property.  If  the 
rule  is  applied  where  the  property  of  a  stranger  is  given,  it 
must  apply  most  strongly  to  the  testator's  own  estate. 

From  1806  to  this  time,  except  Sir  Thomas  Plummer,  all 
judges  have  concurred  in  Thelusson  vs.  Wood/ord;  and  indeed 
it  is  too  clear  for  doubt.  Mr.  Justice  Kennedy,  in  Pennsyl- 
vania, mainly  relies,  that  since  the  revolution,  no  cases  of 
English  origin  are  to  be  referred  to  in  the  courts  of  that  State. 
In  that  State  they  are  wiser  than  all  the  world  put  together ! 


OF  MARYLAND.  197 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


The  rule  is  maintained  in  4  Con.  Ch.  Rep.  209.  4  Con.  C. 
Rep.  412.  Kinnard  vs.  Williams,  8  Leigh.  Va.  Rep.  400. 

Whatever  force  there  may  be  in  4  Whart.  505,  506,  as  ap- 
plicable to  certain  devisees,  it  has  none,  as  respects  a  contest 
between  a  specific  and  a  residuary  devisee,  who  was  to  have 
after  acquired  property.  In  the  latter  case,  the  specific  devi- 
sees can  only  take  to  the  extent  of  their  devises.  If  one  of 
them  is  heir  at  law,  and  another  residuary  devisee,  then  the 
heir  at  law  is  to  get  no  more  than  the  property  specifically  de- 
vised to  him.  If  all,  alike,  are  heirs,  specific  legatees  and 
residuary,  then  each  should  enjoy  according  to  the  intent  of 
the  will. 

Upon  the  question,  whether  the  court  or  party  in  interest 
should  make  the  election,  in  cases  of  coverture  and  infancy  ? 
Boughton  vs.  Boughton,  2  Ves.  Sen.,  12.  2  Rop.  Leg.,  426, 
430,  433.  Ward  vs.  Bawgh.,  4  Ves.  Jr.,  623.  Long  vs.  Long, 
5  Ves.  J.,  445. 

The  words  of  this  will  are  very  clear,  and  carefully  put,  to 
prevent  dying  intestate,  as  to  this  property. 

ARCHER,  J.,  delivered  the  opinion  of  this  court. 

The  controversy  in  the  present  case,  arises  under  the  will 
of  Caspar  Mantz  ;  and  grows  out  of  the  following  clause  in 
the  will : 

"  And  furthermore,  I  do  hereby  make  and  constitute  my 
sister  Theresa,  my  residuary  legatee  and  devisee;  and  I  do 
hereby  give  and  bequeath  to  her  all  my  money,  choses  in 
action,  and  all  the  rest,  and  residue,  and  remainder  of  my 
property,  real,  personal,  and  mixed,  (not  hitherto  devised  or 
bequeathed,)  of  which  Jam  now  possessed,  or  of  which  I  may 
be  possessed,  at  the  time  of  my  death  ;  to  her,  my  said  sister 
Theresa,  her  heirs  and  assigns  forever." 

Which  said  will  was  executed  on  the  9th  day  of  August 
1832. 

On  the  18th  March  1835,  he  purchased  of  a  certain  Joseph 
Kenega,  a  valuable  farm,  near  Frederick  town,  for  which  he 
duly  obtained  a  conveyance;  and  died  on  the  29th  Octo- 
ber 1839. 


198  CASES  IN  THE  COURT  OK  APPEALS 

Mcfcllfresh, adm'r,  c».  Schley  and  Barr. — 1844. 


It  appears  by  the  facts  in  the  case,  that  the  testator  left 
three  sisters,  Mrs.  Harding,  Mrs.  Barr,  and  Mrs.  McElfresh ; 
and  that  Mrs.  McElfresh  is  his  residuary  legatee  and  devisee. 
Among  other  things,  the  testator  devised  to  John  McEl- 
fresh, in  fee,  the  husband  of  the  residuary  legatee  and  devisee, 
certain  renl  estate ;   and   fifteen  thousand  dollars  in  cash,  in 
trust,  for  the  use  of  Mrs.  Hardi7ig,forY\fe,  and  after  her  death, 
the  whole  of  the  said  property  to  go  to  Mrs  Harding^ s  chil- 
dren ;  as  in  the  will  is  particularly  specified. 

A  devise  of  certain  real  estate,  and  thirty-two  thousand 
dollars,  besides  bank,  and  turnpike  stocks,  particularly  speci- 
fied in  the  will,  was  made  to  the  same  trustee  for  the  benefit 
of  Mrs.  Barr,  for  life,  and  after  her  death,  for  the  benefit  of 
her  children  ;  as  set  forth  particularly  in  the  will. 

He  also  devised  sundry  lands  to  Mrs.  McElfresh,  her  heirs, 
and  assigns ;  and  in  the  conclusion  of  his  will,  constituted 
her  residuary  legatee  and  devisee,  in  the  terms  which  have 
been  before  set  forth. 

The  question  submitted  to  us  under  the  will,  above  ad- 
verted to,  as  appears  by  the  agreement,  and  statement  in  the 
record,  is,  whether  Mrs.  Barr,  by  her  trustee,  can  claim  the 
property  devised  in  trust  to  her  b}  the  will  of  Caspar  Mantz; 
and  also,  as  heir  at  law,  the  one-third  of  the  value  of  the 
Kenega  farm,  purchased  by  Caspar  Mantz  after  the  execution 
of  his  will  ? 

The  will  not  having  been  republished,  it  is  conceded,  that  the 
after  purchased  lands  never  passed  under  it ;  no  matter  how 
clear  may  be  the  intention  of  the  testator,  in  the  clause  under 
consideration,  to  pass  them. 

The  answer  to  the  question  will  be  found  in  the  solution  of 
the  enquiry,  whether  the  case  is  one  for  election,  according  to 
the  principles  of  law  applicable  to  such  doctrine?  The  inap- 
plicability of  the  doctrine  of  equitable  election,  to  this  case, 
has  been  urged  upon  several  grounds  : 

1st.  On  the  intention  of  the  testator,  as  deduced  from  the 
residuary  clause. 

2nd.  Its  inapplicability  to  an  heir  at  law. 


OF  MARYLAND.  199 


McElfresh,  adm'r,  vs.  Schley  and  Barr.— 1844. 


3rd.  Its  supposed  inapplicability  to  a  clause  in  a  will,  which, 
although  it  may  manifest  the  intention  of  the  testator,  is  in 
itself  inoperative  to  pass  any  estate  by  the  rules  of  law.  And, 

4th.  On  the  ground  that  the  case  before  us,  if  the  intention 
were  even  clear,  and  if  applicable  to  an  heir  at  law,  is  not  of 
such  a  character  as  comes  within  the  most  approved  definition 
of  the  doctrine. 

It-  No  person  will  be  compelled  to  make  an  election,  unless 
the  intention  of  the  testator  be  sufficiently  made  out.  There 
never  can  be  a  case  of  implied  election,  but  upon  a  presumed 
intention  of  the  testator.  3  Bro.  Ch.  191,  1  Ves.jr.  257,  557. 
The  degree  of  intention  necessary  to  raising  a  case  of  elec- 
tion, must  plainly  appear  upon  the  face  of  the  will.  On  the 
other  hand,  it  is  said,  the  court  is  not  to  refuse  attention,  to 
what  amounts  to  a  moral  certainty  of  the  testator's  intention  ; 
where  that  is  to  be  gathered,  either  from  the  state  of  the  pro- 
perty, or  the  purview  of  the  will.  4  Bro.  Ch.  24. 

What  was  then  the  intention  of  the  testator  in  the  residuary 
clause  ?  It  is  supposed  that  the  residuary  clause  may  be  con- 
strued, so  as  only  to  shew  an  intent  to  pass,  that  which  should 
constitute  a  residue  of  his  then  existing  property,  at  the  time 
of  his  death  ;  and  not  property,  which,  after  the  execution  of 
his  will,  he  might  acquire.  Such  a  construction  would  make 
the  testator  guilty  of  the  folly  of  supposing,  that  without  such 
clause,  either  the  residue  at  his  death  would  not  pass,  by  the 
term,  "of  which  I  am  now  possessed,"  or,  that  any  portion  of 
his  property,  constituting  a  part  of  the  residuary,  if  disposed  of 
by  him  in  his  life  time,  would  pass  under  the  will:  a  supposi- 
tion we  should  not  be  justified  in  making,  when  the  words, 
themselves,  have  so  plain  an  import.  His  design  is  declared 
in  express  terms,  to  make  her  his  residuary  devisee  ;  and  of 
what,  he  explicitly  announces,  by  devising  the  remainder  of 
the  property,  of  which  he  was  then  possessed,  or  of  which  he 
might  be  possessed  at  the  time  of  his  death ;  the  term  "which," 
referring  in  the  mind  of  the  testator  to  the  word  "property," 
and  not  to  the  word  " remainder."  It  then  stands  as  a  devise 
of  all  the  estate  of  which  he  died  possessed,  or  of  which  he 
might  be  possessed  at  the  time  of  his  death. 


200  CASES  IN  THE  COURT  OF  APPEALS 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 

We  agree  with  the  Vice  Chancellor,  in  4  Sim.,  520,  that 
such  words  show  in  a  most  marked  manner,  that  he  intended 
to  pass,  not  only  the  estates  he  had  at  the  date  of  the  will, 
but  all  that  he  should  be  in  possession  of,  at  the  time  of  his 
decease.  It  cannot  be  denied,  that  the  words  would  pass  all 
the  personal  estate,  that  the  testator  was  possessed  of  at  his 
death ;  and  if  it  is  clear  as  to  future  personal  estate,  how  can 
it  be  said  he  had  not  the  same  intention  as  to  real  estate, 
when  they  are  both  disposed  of  in  the  same  sentence?  Can 
any  one  say,  that  he  had  one  intention  as  to  personal  estate, 
and  a  different  intention  as  to  the  real  estate,  when  he  uses 
"the  same  words  as  to  both."  And  he  overrules  a  contrary 
construction  put  upon  words  of  the  like  import,  in  Back  4" 
Kelt,  Jacobs  Rep.,  540. 

2.  That  this  doctrine  is  applicable  to  an  heir  at  law,  is 
clear  from  the  authorities.  2  Fern.  586.  2  Ves.  Jr.  696.  2 
Scho.  §•  Lef.  449.  2  Story  Eq.  note,  338.  2  Ves.  Jr.  544,  559. 
2  Ves.  Sf  Bea.  187,  are  all  cases  where  the  heir  at  law  was 
put  to  his  election ;  and  in  10  Ves.  593.,  the  point  was  ad- 
mitted, that  the  doctrine  reached  the  heir.  The  same  doc- 
trine was  applied  in  2  Eq.  Ca.  2,  referred  to  in  2  Rop. 
Leg.  405  ;  and  in  the  case  of  2  Ves.  Sf  Bea.  187,  it  was 
applied  in  a  case,  in  which  the  devise  to  the  heir  was  inope- 
rative. 

In  the  case  of  an  express  condition,  there  never  could  have 
been  a  doubt,  because  the  testator  may  annex  what  condition 
he  pleases  to  his  estate.  Why  should  not  election  occur  in 
the  case  of  an  implied  condition,  if  the  intention  be  plain  and 
clear,  as  against  the  heir  ?  It  is  said,  that  the  devise  to  the 
heir  is  read  as  if  it  were  to  him  absolutely,  if  he  confirm 
the  will:  if  not,  then  in  trust  for  the  disappointed  devisees  as 
to  so  much  of  the  estate  given  to  him,  as  shall  be  equal  in  value 
to  the  estates  intended  for  them.  It  is  only  carrying  out  a 
plain  intent  of  the  testator,  and  giving  to  the  residuary  devi- 
see, that  which  the  testator  intended,  and  forbidding  the  heir 
from  taking  property  not  designed  for  him.  From  the  earliest 
case  on  the  subject,  the  rule  is,  that  a  man  shall  not  take  a 


OF  MARYLAND.  201 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


benefit  under  a  will,  and  at  the  same  time  defeat  the  provi- 
sions of  the  instrument.  If  he  claims  an  interest  under  an 
instrument,  he  must  give  full  effect  to  it,  as  far  as  he  is  able 
to  do  so.  He  cannot  take  what  is  devised  to  him,  and,  at  the 
same  time,  what  is  devised  to  another;  although,  but  for  the 
will,  it  would  be  his  :  hence  he  is  driven  to  his  election  to 
say,  which  he  will  take. 

3.  But  we  have  seen  that  the  will  is  inoperative  to  pass  the 
lands  acquired  after  its  execution.  Will  this  fact  prevent  the 
application  of  the  doctrine  of  election  ?  The  English  cases 
since  the  revolution,  are,  we  think,  decisive  of  this  subject. 
13  Ves.  219.  4  Simons,  520.  4  Con.  Ch.  Rep.  412.  The 
first  of  these  cases  was  affirmed  in  the  House  of  Lords,  and  is 
considered,  notwithstanding  the  opinion  of  Sir  T.  Plumer,  in 
Back  fy  Kett,  Jacobs  534,  as  a  case  of  great  authority  ;  and  is 
now  the  settled  law  of  England.  We  could  add  nothing  to 
the  convincing  reasons  by  which  these  cases  are  supported, 
by  the  judges  who  decided  them.  There  are  cases  of  void 
wills,  such  as  the  will  by  a  feme  covert,  or  an  infant,  which 
certainly,  by  established  cases,  will  not  demand  an  election ; 
but  these  have  been  rightly  placed  on  a  ground,  which  does  not 
affect  the  present  question.  So  too,  a  will  not  executed  and 
attested  according  to  the  statute,  creates  no  case  of  election 
from  implication.  They  are  considered  as  no  wills  ;  they 
cannot  be  read  as  evidence ;  and  there  is  nothing,  therefore, 
to  indicate  intention.  But  in  the  case  before  us,  the  will  is 
properly  in  evidence ;  and  the  intention  is  clearly  indicated. 
The  cases  above  referred  to  may  be  the  first  in  which  the 
law  of  election  was  applied  to  a  will,  ineffective  to  pass  after 
acquired  lands  ;  but  no  case  from  the  English  books  has  been 
cited  against  such  application,  and  we  consider  them  as  the 
strongest  evidence  of  the  pre-existing  law  ?  We  have  exa- 
mined an  opposing  case,  cited  from  1  Whar.  Pen.  Rep.  509, 
but  cannot  agree  with  it,  in  confining  the  rule  of  election  to 
the  operative  parts  of  the  will,  from  the  fear  of  being  led  into 
error,  by  endeavoring  to  give  effect  to  an  intention  imputed  to 
the  donor.  It  would  be  only  in  such  cases  where  the  inten- 
26  2v. 


202  CASES  IN  THE  COURT  OF  APPEALS 

McEIfresh,  adm'r,  vs.  Schley  and  Barr.— 1844. 

tion  was  plain,  that  the  rule  would  or  ought  to  be  extended, 
and  when  this  is  clearly  ascertained,  it  would  be  unbecoming 
a  court  of  conscience  to  allow  the  heir  to  take  the  devise  to 
himself,  and  also  as  heir,  what  was  manifestly  intended  for 
another. 

4.  The  modern  English  cases  do  not,  we  apprehend,  extend 
or  enlarge  the  principle  of  election.  That  principle,  as  appli- 
cable to  this  case,  we  take  to  be  this  :  that  no  one  shall  be  per- 
mitted to  take  under  an  instrument,  and  defeat  its  provisions  ; 
or,  in  the  language  of  Lord  Erskine,  a  person  shall  not  claim 
an  interest  under  an  instrument,  without  giving  full  effect  to 
that  instrument  as  far  as  he  can.  This  is  not  a  new  doctrine  ; 
it  will  be  found  to  have  been  announced  as  long  since  as  the 
case  of  Noys  fy  Mor daunt,  2  Ves.  581.  Lord  Redesdale,  in  2 
Scho.  <Sr  Lef.  449,  451,  says  the  general  rule  is,  that  a  person 
cannot  accept  and  reject  the  same  instrument ;  and  he  declares 
it  to  be  the  foundation  of  the  law  of  election,  upon  which 
courts  of  equity,  particularly,  have  grounded  a  variety  of  de- 
cisions in  cases,  both  of  deeds  and  wills. 

The  complainants  allege  in  their  bill,  that  after  the  death  of 
the  testator,  Mrs.  Barr  was  put  in  possession  of  the  lands  de- 
vised ;  that  she  had  ever  since  beea  in  the  enjoyment  of  the  rents 
and  profits ;  and  had  received  the  interest  on  the  bank  stock 
devised  to  her;  and  that  her  trustee  had  received  in  pursuance 
of  the  will,  the  sum  of  $32,000  for  her  use,  and  had  invested 
the  same  ;  that  she  had  made  efforts  to  procure  the  payment  of 
the  interest  from  the  said  trustee,  on  the  money  bequeathed 
to  her. 

It  thus  appears,  that  her  trustee  and  herself,  are  in  possession 
of  all  the  estate  devised  to  her;  and  she  is  claiming,  as  heir  at 
law,  the  proceeds  of  the  Kenega  farm,  purchased  by  the  testa- 
tor after  the  date  of  the  will.  By  the  agreement  of  the  parties, 
it  is  conceded,  that  the  court  may  make  a  decree  in  accordance 
with  the  doctrine  of  election,  and  to  have  the  same  effect  as 
if  a  cross  bill  had  been  filed,  to  compel  Mrs.  Barr  and  her  trus- 
tee to  make  their  election  :  provided,  the  court  should  be  of 
opinion,  that  Mrs.  Barr  could  not  claim  the  devises  and  be- 


OF  MARYLAND.  203 


McElfresh,  adm'r,  vs.  Schley  and  Barr. — 1844. 


quests  made  in  her  behalf;  and  also  claim,  as  heir  at  law,  her 
proportion  of  the  lands  purchased  after  the  execution  of  the 
will;  and  that  this  is  a  case  in  which  Mrs.  Barr  should  be 
compelled  to  make  her  election. 

We  have  seen,  that  the  case  before  us  is  a  proper  case  for 
election  ;  and  we  perceive  nothing  in  the  character  of  the  trusts, 
which  should  forbid  its  application  ;  or  how  any  injustice  could 
be  done  to  the  children  of  Mrs.  Barr,  who  take,  after  her  death, 
by  the  terms  of  the  trust.  If  Mrs.  Barr  elected  to  take  the 
property  devised,  then  all  her  right  and  title  in  the  property 
purchased  after  the  date  of  the  will,  would  be  directed  to  be 
conveyed  to  the  residuary  devisee.  If,  on  the  other  hand,  she 
elected  to  take  as  heir  the  after  purchased  land,  her  life  estate 
in  the  lands  devised  and  in  the  property  bequeathed,  would  be 
gone,  and  would  pass  to  the  residuary  devisee;  such  an  elec- 
tion, however,  would  not  affect  the  persons  in  remainder,  who 
would  take  their  estates  in  the  property  devised  ;  just  as  they 
would  have  taken  them,  if  there  had  been  no  case  of  election 
under  the  will. 

We  shall,  therefore,  sign  a  decree,  that  Mrs.  Barr  and  her 
trustee  shall,  within  sixty  days  after  service  of  a  copy  of  the 
decree,  make  her  election ;  either  to  take  under  the  will,  or  to 
take  her  proportion  of  the  Kenega  farm,  purchased  by  the  tes- 
tator after  the  date  of  the  will ;  and  if  she  should  fail  to  make 
her  election  within  tha*  time,  that  then  she  shall  convey  her 
part  of  the  said  Kenega  farm,  which  descended  to  her  on  the 
death  of  the  testator,  to  Theresa  McEl/resh,  in  fee  simple  ;  and 
the  decree  shall  provide,  in  case  Mrs.  Barr  should  elect  to 
take  the  land  descended  to  her,  instead  of  the  devises  and  be- 
quests to  her  by  the  will,  that  then  she  shall  account  for  the 
sums  by  her  received  under  the  will ;  and  that,  thereafter,  the 
said  trustee  shall  hold  the  property  devised  and  bequeathed  in 
trust  for  Mrs.  Barr,  in  trust  during  the  life  of  Mrs.  Barr 
for  Mrs.  Theresa  McElfresh.  And  that  the  principles  of  this 
decree  may  be  carried  into  effect,  the  decree  of  Frederick 
county  court  will  be  reversed,  and  the  cause  will  be  remanded 
to  Frederick  county  court. 

DECREE  REVERSED  AND  CAUSE  REMANDED. 


204  CASES  IN  THE  COURT  OF  APPEALS 

Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 

MARGARET  WALTER  AND  OTHERS'  LESSEE,  vs.  ASHTON 
ALEXANDER  AND  SARAH  ROGERS  ALEXANDER. — De- 
cember, 1844. 

Where  a  defendant  offers  in  evidence  collaterally,  proceedings  in  ejectment, 
and  the  plaintiff  prays  the  court  to  instruct  the  jury,  that  they  do  not  vest 
any  title  in  the  defendant,  and  are  no  bar  to  the  plaintiff's  right,  such  a 
prayer  is  not  too  general,  under  the  act  of  1825,  ch.  117. 

This  court  must  assume,  under  such  a  prayer,  that  every  ground  which  estab- 
lished either  of  the  points  relied  on  in  it,  was  considered  and  determined 
by  the  county  court. 

The  statute  4  Geo.  2,  ch.  28,  requires,  that  to  render  a  judgment  by  default, 
conclusive  upon  the  rights  of  a  tenant,  and  bar  his  future  recovery  of  the 
demised  premises,  it  shall  be  made  appear  to  the  court  where  the  suit  is 
depending,  by  affidavit,  that  half  a  years  rent  was  due  before  the  declara- 
tion was  served,  and  that  no  sufficient  distress  was  to  be  found  upon  the 
demised  premises,  countervailing  the  arrears  of  rent  then  due,  and  that  the 
lessor  in  ejectment  had  power  to  re-enter ;  in  every  such  case  the  lessor 
shall  recover  judgment  and  execution,  in  the  same  manner,  as  if  the  rent 
in  arrear  had  been  legally  demanded. 

To  make  a  judgment  by  default,  a  bar  to  a  lease  under  the  statute  of  4  Geo.  2, 
the  record  must  disclose  such  facts  and  circumstances,  as  will  justify  the 
court  in  believing,  or  assuming,  that  in  rendering  its  judgment,  the  court 
below  designed  to  exercise  the  authority  conferred  on  it  by  the  statute. 

When  all  the  proceedings  in  ejectment,  until  long  after  the  judgment  by  de- 
fault, show  it  to  have  been  an  ordinary  case  of  ejectment,  having  no  con- 
nexion with  the  statute,  there  is  nothing  to  warrant  the  assumption,  that 
the  judgment  was  rendered  under  the  authority  of  the  statute. 

Where  the  affidavit  required  by  the  statute,  was  filed  in  vacation,  at  a  differ, 
ent  term  from  that  of  the  judgment,  and  more  than  ten  months  after  its 
rendition ;  and  which,  according  to  the  proof,  was  never  shown  to  the 
county  court,  this  court  will  not  assume  the  judgment  was  given  on  the 
affidavit,  according  to  the  obvious  import  and  design  of  the  statute. 

The  affidavit  in  such  cases,  should  be  filed  before  the  judgment  by  default  is  en- 
tered, or  some  time  during  the  term  at  which  it  was  rendered ;  so  that 
before  the  judgment  became  absolute,  the  court  may  have  had  an  oppor- 
tunity of  inspecting  and  adopting  the  affidavit,  as  the  basis  of  its  judg- 
ment. 

The  court  will  not  presume,  that  an  affidavit  was  filed,  pursuant  to  the  sta- 
tute, after  a  lapse  of  seventeen  years,  where  it  clearly  appears,  that  in  fact 
it  was  not  so  filed ;  yet  if  filed  in  time,  it  will  be  presumed  to  have  dis- 
charged their  duly  in  relation  to  it. 

The  construction  of  a  statute  in  every  part  of  the  State  must  be  the  same . 
a  practice  in  a  particular  part  of  the  State,  inconsistent  with  its  letter 
and  spirit,  cannot  repeal  it. 


OF  MARYLAND.  205 


Walter,  et  al.  vs.  Alexander  and  wife. — 1844. 


The  county  court  ought  not  to  be  called  upon,  to  submit  to  the  finding  of  the 
jury,  a  fact,  of  which  there  was  no  testimony. 

A  party  purchased  the  reversion  in  fee  of  a  lot,  described  as  subject  to  a  ground 
rent,  the  deed  for  the  reversion  being  for  less  ground  than  the  original  lease. 
Afterwards,  the  rent  not  being  paid,  the  purchaser  of  the  reversion,  brought 
his  action  of  ejectment  to  recover  possession ;  declared  according  to  the 
lease,  and  recovered  judgment  by  default,  and  possession.  Some  years  after, 
the  lessee  brought  another  action  for  the  premises  described  in  the  lease. 
HELD  :  that  the  recovery  in  the  first  action,  being  for  more  land  than  the 
plaintiff  was  entitled  to,  was  no  evidence  that  the  whole  reversion  of  the 
leased  premises  had  been  conveyed  to  the  plaintiff  in  that  action. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  ejectment,  brought  on  the  19th  April 
1841,  by  John  Doe,  lessee  of  the  appellants.  The  plaintiff 
declared  for  the  following  lot: 

Beginning,  for  the  same,  on  the  east  side  of  South  street ; 
south,  three  and  three-quarters  degrees  east,  seventy-nine  feet, 
three  inches,  from  the  south-east  intersection  of  South  and  Wa- 
ter streets  ;  and  running  thence  bounding  on  South  street,  south, 
three  and  three-quarters  degrees  east,  twenty-six  feet,  nine  in- 
ches; thence  north,  eighty-six  and  a  quarter  degrees  east,  sev- 
enty-nine feet  six  inches,  to  the  divisional  line  between  Daniel 
Bowley  and  Jno.  McClure;  thence,  bounding  on  said  line,  north, 
twenty-six  feet  nine  inches ;  and  thence,  by  a  straight  line  to 
the  beginning;  with  the  appurtenances  situate,  and  being  in 
Baltimore  county  aforesaid,  which  Margaret  Walter,  deceased, 
in  her  life  time,  had  demised  to  the  said  John  Doe,  for  a  term 
which  is  not  yet  expired  ;  and  counted  upon  separate  demises, 
made  on  the  1st  March  1840,  by  each  of  the  lessors  of  the 
plaintiffs,  the  appellants  in  this  cause. 

The  tenants  in  possession,  the  appellees,  appeared  and 
pleaded  non  cul,  on  which  issue  was  joined. 

IST  EXCEPTION.  The  plaintiffs,  to  support  the  issue  on  their 
part,  gave  in  evidence  to  the  jury,  that  Daniel  Bowley  being 
seized  in  fee  of  the  lot  of  ground  for  which  this  suit  was 
brought,  executed  and  delivered  the  following  lease  for  the 
same: 


203  CASES  IN  THE  COURT  OF  APPEALS 

Walter,  et  al  ,vs.  Alexander  and  wife. — 1844. 

This  indenture,  made  the  21st  day  of  December  1798,  be- 
tween Daniel  Bowley  of,  &c.,  and  Solomon  Etting  of,  &c.,  \vit- 
nesseth,  that  the  said  Daniel  Bowley,  for,  and  in  consideration 
of  the  payment  of  the  rents,  and  performance  of  the  covenants, 
hereinafter  mentioned,  on  the  part  of  the  said  Solomon  Etting 
and  his  assigns,  to  be  paid  and  performed  ;  hath  demised,  &c., 
and  by  these  presents  doth  demise,  &c.,  unto  the  said  Solomon 
Etting,  his,  &c.,  all  that  lot  of  ground  situate  in  the  city  of 
Baltimore,  containing,  &c.  Beginning,  for  the  same,  on  the 
east  side  of  South  street,  south,  three  and  three-quarter  degrees 
east,  seventy-nine  feet  three  inches,  from  the  south-east  inter- 
section of  South  and  Water  streets;  and  running  thence,  bound- 
ing on  South  street,  south,  three  and  three-quarter  degrees 
east,  twenty-five  feet  nine  inches ;  thence  north,  eighty-six  and  a 
quarter  degrees  east,  seventy -nine  feet  six  inches,  to  the  divi- 
sion line,  between  Daniel  Bowley  and  John  McLure;  thence, 
bounding  on  said  line,  north  twenty-five  feet ;  and  thence,  by  a 
straight  line,  to  the  place  of  beginning  :  being  lot,  No.  2,  as  by 
a  private  plot  or  survey  thereof,  made  and  certified  by  Jehu 
Bouldin,  on  the  5th  day  of  December  1798  ;  the  plot,  thereof, 
now  in  the  possession  of  said  Etting,  reference  thereto,  being 
had,  will  more  fully  appear.  To  have  and  to  hold  the  said  lot 
of  ground  and  premises,  with  their  and  every  of  their  appur- 
tenances, unto  the  said  Solomon  Etting,  his,  &c.,  from  the  day 
next  before  the  day  of  the  date  of  these  presents,  for  and  dur- 
ing, and  until  the  full  end  and  term  of  ninety-nine  years,  from 
thence  next  ensuing,  fully  to  be  complete  and  ended;  yielding 
and  paying  therefor,  to  the  said  Daniel  Bowley,  his  heirs  and 
assigns,  the  yearly  rent  or  sum  of  $100.  The  lease  then  re- 
served a  right  to  re-enter  for  non  payment  of  rent,  &c. 

The  plaintiffs  further  proved,  that  such  lease,  by  various 
inesne  assignments,  became  vested  in  George  G.  Krause,  who 
duly  made  and  published  the  following  will,  which  among  oth- 
ers, contained  the  following  clause: 

Item.  I  give  to  the  children  of  my  oldest  daughter,  Mar- 
garet Walter,  the  brick  warehouse  in  South  street,  with  its 
appurtenances  thereon,  during  the  residue  of  the  term  origi- 


OF  MARYLAND.  207 


Walter,  et  al.,  vs  Alexander  and  wife. — 1844. 


nally  letten,  with  the  benefit  of  renewal  forever,  subject  lo  the 
yearly  rent  reserved  thereon.  The  rent  thereof,  my  son-in-law, 
Philip  Walter,  shall  receive,  as  soon  as  he  and  my  daughter, 
Margaret,  keep  house  for  themselves,  and  not  sooner. 

Item,  I  give  and  devise  to  my  beloved  wife,  all  my  house- 
hold and  kitchen  furniture;  also,  all  the  stock  of  horses,  cattle, 
sheep,  hogs,  and  other  articles  on  my  farm,  during  her  natural 
life  ;  and  after  her  death,  the  whole  of  her  property  to  be  equal- 
ly devided  among  my  three  daughters.  Should  there  be  any 
debts  left  after  my  death,  it  is  my  will,  that  all  rents  arising 
from  said  houses,  shall  be  used  for  defraying  such  debts ;  and 
afterwards,  my  dear  wife  shall  receive  all  the  rents,  until 
either  of  my  two  daughters  shall  marry. 

Hem.  I  do  hereby  nominate,  constitute  and  appoint  George 
Schauber  and  John  M.  Dosh,  executors.  In  testimony  where- 
of, I  have  hereto  set  my  hand  and  seal,  this  30th  day  of  Octo- 
ber 1811. 

And  died;  that  the  plaintiffs  are  the  children  of  Philip  and 
Margaret  Walter,  mentioned  in  said  will,  and  were  minors  un- 
til 1835;  and  also  proved,  that  shortly  prior  to  the  institution 
of  this  ejectment,  the  plaintiffs  offered  to  Ashton  Alexander, 
one  of  the  defendants,  who  is  the  husband  of  Sarah  R.  Alex- 
ander, formerly  Sarah  R.  Merryman,  the  other  defendant;  that 
said  Alexander  should  charge  the  rents  of  said  property  under 
said  lease,  from  the  last  day  on  which  payment  was  made,  up 
to  the  time  of  said  offer,  and  all  interest  thereon,  and  all  ex- 
penses incurred  by  said  Alexander  or  his  wife,  and  the  inter- 
est and  credit  of  the  rents  of  said  property,  since  it  was  in 
possession  of  said  Alexander  or  his  wife,  with  interest  thereon, 
and  that  the  plaintiff  would  pay  the  difference,  if  any,  what- 
ever it  might  be,  which  proposal  was  refused. 

The  defendants,  to  support  the  issue  on  their  part,  offered 
in  evidence  the  following  copy  of  a  deed,  from  Daniel  Bow- 
ley  to  John  Merryman,  duly  executed,  acknowledged  and 
recorded,  dated  15th  August  1806;  conveying  the  rever- 
sion, in  fee,  to  the  said  J.  M.  and  his  heirs,  of  the  following 
lot,  to  wit:  Beginning  for  the  same,  on  the  east  side  of  South 


208  CASES  IN  THE  COURT  OF  APPEALS 

Walter,  et  al.,  vs.  Alexander  and  wife  — 1844. 

street;  south,  three  and  three-quarter  degrees  east,  seventy- 
nine  feet  three  inches,  from  the  south-east  intersection  of  South 
and  Water  streets  ;  and  running  thence,  bounding  on  South 
street;  south,  three  and  three-quarter  degrees  east,  twenty-five 
feet  nine  inches;  thence  north,  eighty-six  and  a  quarter  degrees 
east,  seventy-nine  feet  six  — ;  to  the  division  line  between 
Daniel  Bowley  and  John  McLure;  thence,  bounding  on  said  line, 
north,  twenty-five  feet ;  and  thence,  by  a  straight  line,  to  the 
beginning  :  being  lot,  No.  2 ;  as,  by  a  private  plat  or  survey, 
thereof  made  and  certified  by  Jehu  Bouldin,  on  the  5th  day 
of  December  1798  ;  the  plat  therof,  now  in  possession  of  said 
Etting,  reference  being  thereto  had,  will  more  fully  appear  ; 
together,  &c. 

And  also  offered  in  evidence,  a  duly  authenticated  copy  of 
the  last  will  and  testament  of  said  John  Merryman;  by  which, 
the  said  lot  was  devised  to  the  said  Sarah  R.  M.  in  fee;  and 
proved,  that  the  said  Sarah,  in  said  will  mentioned,  is  one  of 
the  defendants  in  this  case. 

The  defendants  further  offered  in  evidence,  the  following 
proceedings  of  recovery  in  ejectment,  of  the  premises  men- 
tioned in  the  declaration ;  being  an  action  commenced  by  the 
said  S.  R.  M's  lessee,  against  Isaac  J.  Smith,  on  the  17th 
March  1823,  for  all  that  lot  or  parcel  of  ground,  lying  and 
being  in  the  city  of  Baltimore,  in  Baltimore  county  aforesaid: 
Beginning  for  the  same  on  the  east  side  of  South  (now  called 
Belmdere)  street;  south,  three  and  three-quarter  degrees  east, 
seventy-nine  feet  three  inches,  from  the  south-east  intersection 
of  South  and  Water  streets;  and  running  thence,  bounding  on 
South  street  south,  three  and  three  quarter  degrees  east,  twen- 
ty-six feet  nine  inches:  thence  north,  eighty-six  and  a  quarter 
degrees  east,  seventy-nine  feet  six  inches,  to  the  division  line, 
between  Daniel  Bowley  and  John  McClure;  thence  bounding 
on  said  line  north,  twenty-six  feet  nine  inches  ;  and  thence  by 
a  straight  line  to  the  beginning,  with  the  appurtenances ;  which 
Sarah  Rogers  Merryman  demised,  to  the  said  John,  for  a  term 
of  years  ;  which  is  not  yet  expired,  &c.  The  sheriff  returned 
the  copy  of  the  declaration:  "Copy  set  upon  the  premises,  17th 


OF  MARYLAND.  209 


Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 


March  1823."  A  judgment  by  default  at  March  term  1823, 
was  rendered  against  the  casual  ejector.  The  day  of  the  de- 
raise  was  1st  January  1816. 

On  the  12th  February  1824,  the  said  John  Denn,  lessee  as 
aforesaid,  by  his  attorney  aforesaid,  filed  in  court  here  the  fol- 
lowing affidavit,  to  wit: 

Sarah  R.  Merryman  vs.  Isaac  J.  Smith.  Action  of  eject- 
ment in  Baltimore  county  court.  Sarah  Rogers  Merryman, 
lessor  of  the  plaintiff  in  this  cause,  made  oath  on,  &c.,  that  at 
the  time  of  issuing  the  declaration  in  this  cause,  and  before 
the  time  of  serving  a  copy  of  said  declaration  on  the  tenant 
in  possession  of  the  premises,  in  said  declaration  mentioned, 
there  was  and  now  is  due,  and  in  arrear  to  the  said  Sarah,  as 
landlord  of  said  premises,  the  sum  of  $300,  for  three  years 
rent  of  said  premises ;  and  the  further  sum  of  $49.50, 
balance  due  and  in  arrear  for  one  other  year's  rent  thereof;  and 
this  deponent  further  saith,  that  at  the  time  of  serving  the  copy 
of  said  declaration  on  the  tenant  in  possession  of  the  premi- 
ses, in  said  declaration  mentioned,  she,  this  deponent,  was 
and  now,  is  landlord  of  said  premises,  and  the  said  Isaac  J. 
Smith  was  the  tenant  in  possession  thereof;  and  that  she  then 
had,  and  now  hath  power  to  re-enter  on  said  premises  for  non- 
payment of  the  said  rent;  and  this  deponent  further  saith,  that 
at  the  time,  and  before  said  ejectment  was  served,  no  sufficient 
distress  was  to  be  found  on  said  premises,  and  countervailing 
the  arrears  of  rent  then  due  to  this  deponent.  Sworn  this  3rd 
day  of  February,  in  the  year  1824,  &c.  And  on  the  same 
day,  12th  February  1824,  the  plaintiff  sued  out  a  writ  of  hob. 
fac.  pos.,  under  which,  possession  was  given,  on  the  24th 
February  1824. 

And  also  proved  the  writ  of  possession;  and  further  offered 
evidence,  that  the  said  Sarah,  mentioned  in  said  recovery  in 
ejectment,  intermarried  before  the  institution  of  this  suit,  with 
the  defendant  Jlshton  Alexander,  and  that  said  Sarah  and  Ash- 
ton,  have  been  in  possession  of  the  premises  declared  for  in 
this  case,  ever  since  possession  was  delivered  under  the  writ 
of  possession,  issued  on  said  judgment  in  ejectment,  and  that 
27  v.2 


210  CASES  IN  THE  COURT  OF  APPEALS 

Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 

September  term  1823,  continued  to  the  fourth  Monday  of 
March  1824. 

The  plaintiff  further  offered  in  evidence,  that  the  court  was 
not  in  session  on  the  day  when  the  affidavit,  stated  in  the  re- 
cord, was  filed,  and  when  the  execution  issued. 

The  defendant  offered  evidence,  that  the  terms  of  Baltimore 
county  court  have  always  been  adjourned  over  from  the  end  of 
one  term  to  the  beginning  of  another.  And  the  defendant 
offered  evidence  to  the  court,  by  various  attorneys  at  hw,  of 
the  practice  of  Baltimore  county  court,  as  to  the  time  of  filing 
the  affidavit,  under  the  statute  4,  Geo.  2.  The  practice  was 
stated  to  be,  to  file  the  affidavit  at  any  time  before  suing  out 
the  writ  of  possession.  The  defendant,  also,  filed  copies  of 
the  docket  entries  in  various  actions  of  ejectment,  where  judg- 
ments, nisi,  had  been  entered. 

Whereupon  the  plaintiffs  made  the  following  prayers  to  the 
court: 

The  plaintiffs  pray  the  court  to  instruct  the  jury: 

1st.  That  the  proceedings  in  ejectment,  given  in  evidence 
in  this  cause  of  Merryman's  lessee  vs.  Smith,  do  not  vest  any 
title  in  said  Merryman,  and  are  no  bar  to  plaintiffs'  right  of  re- 
covery in  this  case. 

2nd.  That  as  the  defendants  have  produced  the  record  of 
the  ejectment  suit  between  Merryman's  lessee  and  Walter,  for 
the  lot  in  question  in  this  case,  and  as  a  part  of  that  record, 
the  affidavit  of  the  plaintiff's  lessee  in  that  case,  dated  the  3rd 
February  1824,  and  filed  in  court  in  said  case  on  the  12th  day 
of  the  same  month,  that  then,  in  point  of  law,  said  affidavit 
was  too  late  to  make  the  judgment  in  said  case  conclusive 
against  the  lessee ;  and  the  lessors  of  the  plaintiff,  in  the  pre- 
sent suit,  claiming  the  said  lot  under  the  lease  from  Bowley  to 
Ettings,  as  a  judgment  in  ejectment,  under  the  statute  4, 
George  2nd,  and  that  such  affidavit  having  been  produced  by 
defendants,  the  jury  are  not  bound  to  presume,  that  any  other 
affidavit  to  obtain  or  justify  said  judgment,  under  said  statute, 
was  filed  or  made  before  the  court  rendering  the  said  judgment. 


OF  MARYLAND.  211 

Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 


3rd.  That  the  judgment,  nm,  against  the  casual  ejector,  in 
the  ejectment  referred  to  in  the  preceding  prayer,  became  a 
final  judgment,  after  the  first  day  of  the  term  of  the  court,  in 
which  the  same  was  rendered,  next  succeeding  the  term  at 
which  said  judgment  was  rendered,  and  that  consequently,  the 
said  judgment  became  an  absolute  judgment,  after  the  first  day 
of  the  term  of  said  court,  which  commenced  in  September 
1823;  and  that  the  affidavit  made  by  the  lessor  of  the  plain- 
tiff in  that  suit,  on  the  3rd  February  1824,  and  filed,  in  said 
suit,  on  the  12th  of  that  month,  was  not  in  time  to  authorise 
such  judgment,  under  the  statute  of  4th  George  2nd,  so  as  to 
make  the  same,  and  the  proceedings  in  the  said  case,  final  and 
conclusive  upon  the  lessee  of  the  lessor  of  the  plaintiff  in  that 
case,  and  those  claiming  under  the  lease. 

4th.  And  the  plaintiff  further  prays  the  opinion  of  the  court 
to  the  jury,  that  if  they  find  from  the  evidence,  that  the  affida- 
vit filed  in  the  ejectment  suit  aforesaid,  of  Merryman's  lessee, 
was  not,  in  fact,  submitted  to  the  court  by  which  said  judgment 
was  rendered  or  approved  of,  or  seen  by  said  court,  or  held  by 
it  to  be  sufficient  under  the  said  statute  of  George  the  2nd;  and 
if  they  also  find,  that  no  other  affidavit  in  said  case  was  made, 
that  then  said  proceedings  in  ejectment  are  not  conclusive  upon 
the  rights  of  the  lessor  under  said  statute. 

The  defendants  then  prayed  the  court  to  direct  the  jury,  that 
if  they  should  find,  that  the  defendant,  Sarah,  became  entitled 
to  the  reversion  of  the  ground  declared  for,  as  stated  in  the 
testimony,  and  recovered  possession,  and  took,  and  has  ever 
since  held  possession  thereof,  in  the  year  1824,  as  shewn  by 
the  record  of  recovery,  given  in  evidence,  and  that  this  action 
was  instituted  on  the  19th  day  of  April  1841,  then  the  plain- 
tiff is  not  entitled  to  recover. 

The  court  (MAGRUDER  and  PURVIANCE,  A.  J.,)  refused  the 
prayers  of  the  plaintiffs. 

The  prayer  of  the  defendant  was  granted. 

The  plaintiffs  excepted  on  both  grounds,  and  the  verdict 
and  judgment  being  against  them,  they  prosecuted  the  present 
appeal. 


212  CASES  IN  THE  COURT  OP  APPEALS 

Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 

The  cause  was  argued  before  ARCHER,  DORSEY,  CHAM- 
BERS and  SPENCE,  J. 

By  RICHARDSON  and  R.  JOHNSON  for  the  appellants,  and 
By  MEREDITH  and  MAYER  for  the  appellees. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

The  first  prayer  of  the  plaintiff  is,  "that  the  proceedings  in 
ejectment,  given  in  evidence  in  this  cause,  of  Merry-man's 
Lessee  vs.  Smith,  do  not  vest  any  title  in  said  Merryman^  and 
are  no  bar  to  plaintiff's  right  of  recovery  in  this  case."  The 
objection  taken  to  this  prayer  as  being  too  general,  in  not  suffi- 
ciently presenting,  according  to  the  act  of  1825,  c.  117,  the 
point,  which  the  county  court  are  required  to  decide,  we  think 
cannot  be  sustained.  The  points,  on  which  the  decision  of 
that  court  were  demanded,  were,  that  the  proceedings  in  the 
ejectment  referred  to  did  not  vest  any  title  in  Merryman,  and 
formed  no  bar  to  the  plaintiff's  right  to  recover.  Every  ground, 
therefore,  which  established  either  of  those  points,  we  must 
assume  to  have  been  considered  and  determined  by  the  county 
court.  It  was  very  properly  conceded  in  the  argument,  that  if 
these  proceedings  in  ejectment,  offered  in  evidence  to  shew 
title  in  the  defendants,  were  not  had  under  the  statute  of  4 
Geo.  2,  c.  28,  that  the  judgments  therein  rendered,  vested  no 
title  in  the  defendant's  wife,  and  formed  no  bar  to  the  plain- 
tiffs right  to  recover.  This  statute  requires,  that  to  render  a 
judgment  by  default  conclusive  upon  the  rights  of  the  tenant, 
and  bar  his  future  recovery  of  the  demised  premises,  it  shall 
be  made  appear  to  the  court,  where  the  said  suit  is  depending, 
by  affidavit,  that  half  a  years  rent  was  due  before  the  declara- 
tion was  served,  and  that  no  sufficient  distress  was  to  be  found 
upon  the  said  demised  premises,  countervailing  the  arrears  then 
due,  and  that  the  lessor  or  lessors  in  ejectment,  had  power  to 
re-enter;  in  every  such  case,  the  lessor  or  lessors,  in  ejectment, 
shall  recover  judgment  and  execution,  in  the  same  manner  as 
if  the  rent  in  arrear  had  been  legally  demanded,  and  a  re-en- 
try made.  To  give  to  this  judgment  the  efficacy  ascribed  to 


OK  MARYLAND.  213 


Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 


it,  it  must  appear  to  this  court  to  be  a  judgment  rendered  un- 
der the  statute  of  4  Geo.  2;  or,  in  other  words,  the  record 
must  disclose  such  facts  and  circumstances,  as  would  justify 
us  in  believing  or  assuming,  that  in  rendering  its  judgment, 
the  court  below  designed  to  exercise  the  authority  conferred 
on  it  by  the  statute.  The  record,  before  us,  discloses  nothing 
which  could  warrant  us  in  any  such  assumption  or  belief.  All 
the  proceedings  in  ejectment,  until  long  after  the  judgment, 
shew  it  to  have  been  an  ordinary  case  of  ejectment,  (having 
no  connexion  with  the  statute,)  the  judgment  in  which,  is  con- 
clusive upon  no  body.  Upon  what  principle,  then,  can  this 
court  be  called  on,  where  an  affidavit  was  filed  in  the  case,  in 
vacation,  at  a  different  term  from  that  of  the  judgment;  and 
more  than  ten  months  after  it  was  rendered,  and  which  accord- 
ing to  the  proof  was  never  shown  to  the  county  court,  to  believe 
or  assume,  that  its  judgment  was  given  on  the  affidavit  thus 
introduced  into  thecause  ?  According  to  the  obvious  import  and 
design  of  the  statute  of  4  Geo.  2,  c.  28,  we  think  the  affidavit 
should  be  filed  before  the  judgment  by  default  is  entered,  or 
some  time  during  the  terra  at  which  it  was  rendered;  so  that, 
before  it  became  absolute,  the  court  may  have  had  an  oppor- 
tunity of  inspecting  and  adopting  the  affidavit,  as  the  basis  of 
its  judgment.  That  such  is  the  construction  of  this  statute  in 
England,  see  Mam's  on  Ejectment  159,  and  Doe.  on  Dem.  of 
Hitchings  and  Another ,  vs.  Lewis  1  Burr.  614. 

It  has  been  contended  in  this  case,  that  after  the  lapse  of 
seventeen  years,  during  which  the  defendants  have  been 
in  the  undisturbed  possession  of  the  demised  premises,  this 
court  ought  to  presume  the  filing  of  an  affidavit  pursuant 
to  the  statute.  The  proof  in  this  case  having  so  clearly  dis- 
proved such  filing  of  the  affidavit,  the  court  has  no  ground  left 
for  such  a  presumption  to  rest  on.  This  case  differs  essen- 
tially from  the  case  above  mentioned,  of  1  Burr,  614,  referred 
to  as  warranting  the  presumption  which  this  court  has  been 
called  on  to  make.  There,  the  question  arose  upon  a  case 
stated,  in  which  the  proceedings  and  judgment  in  ejectment, 
were  stated  to  have  been  "under  and  by  virtue  of  the  statute 


214  CASES  IN  THE  COURT  OF  APPEALS 

Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 


of  4  Geo.  2,  c.  28;"  and  that  fact  was  strongly  relied  on  by 
the  court,  which,  after  an  acquiescence  in  the  landlord's  pos- 
session, under  the  judgment  of  almost  twenty  years,  deter- 
mined that  it  was  not  necessary  that  the  landlord  should  have 
produced  the  affidavit  on  the  trial,  in  which  the  proceedings  in 
ejectment  were  offered  as  evidence. 

We  must  not  be  understood  as  deciding,  that  to  give  effect 
and  validity  to  the  judgment  of  the  court,  in  a  proceeding  in 
ejectment,  under  the  4  of  Geo.  2,  when  judgment  is  incident- 
ally brought  before  the  court,  (as  in  this  case,)  as  evidence  of 
title,  that  it  must  appear  upon  the  face  of  the  proceedings, 
that  all  the  requisitions  of  the  statute  have  been  complied  with ; 
that  there  is  no  error  in  the  judgment  of  the  county  court, 
which  upon  appeal  or  writ  of  error  would  cause  its  reversal. 
All  that  we  mean  to  decide  is,  that  to  give  to  a  judgment  by 
default  in  ejectment,  under  the  statute  of  4  Geo.  2,  the  con- 
clusiveness  designed  to  be  imputed  to  it  by  the  statute,  it  is 
necessary  that  the  affidavit  should  be  filed  or  presented  to  the 
court  before  the  judgment  is  rendered,  or  some  time  during 
the  term  at  which  it  was  given;  so  that  before  it  became  abso- 
lute, the  court  may  have  had  an  opportunity  of  inspecting  and 
adopting  the  affidavit  as  the  basis  of  its  judgment,  and  that 
such  judgment,  when  offered  in  evidence,  as  in  this  case,  was 
sustained  by  such  an  affidavit,  as  satisfied  the  court  before 
which  it  was  offered  in  evidence,  that  the  court  by  which  it 
was  rendered,  intended  it  as  a  judgment  under,  and  in  virtue 
of  the  statute  4  of  Geo.,  2,  c.  28. 

Nor  do  we  mean  to  say,  that  it  is  requisite  that  the  affidavit 
should  appear  to  have  been  presented  to  the  court.  If  filed 
at  the  proper  time,  the  court  will  be  presumed  to  have  dis- 
charged their  duty  in  relation  to  it. 

The  testimony  offered  on  the  part  of  the  defendants,  of  the 
loose  practice  sometimes  prevailing  in  the  city  of  Baltimore, 
of  filing  the  affidavit  long  after  the  rendering  of  the  judgment, 
or  as  the  witnesses  state,  at  any  time  before  the  issuing  of  the 
writ  of  habere  facias  possessionem,  can  have  no  influence  on 
the  determination  of  the  case  before  us.  The  construction  of 


OF  MARYLAND.  215 


Walter,  et  al.,  vs.  Alexander  and  wife. — 1844. 


the  statute  must  be  the  same  in  every  part  of  the  State;  and 
were  it  otherwise,  the  practice  referred  to,  is  so  entirely  incon- 
sistent wilh  both  the  letter  and  spirit  of  the  statute,  that  to 
sanction  such  a  practice  would  be,  pro  tanto,  to  repeal  the  stat- 
ute. We  think  the  county  court  erred  in  refusing  to  grant  the 
appellant's  two  next  prayers;  for  the  reasons  we  have  stated, 
in  the  consideration  of  its  refusal  to  grant  his  first  prayer. 

The  court  below,  also  erred,  in  their  refusal  of  the  appel- 
lant's fourth  prayer;  because,  from  the  uncontradicted  record 
evidence  in  the  cause,  it  could  not  have  worked  injustice  to 
the  appellees,  but  might  have  operated  most  prejudicially  to 
the  rights  of  appellant.  Under  the  opinion  of  this  court,  the 
proceedings  and  judgment  in  ejectment,  relied  on  by  the  appel- 
lees, formed  no  bar  to  the  plaintiff's  recovery,  and  the  jury 
were  not  at  liberty  to  find  the  filing  of  any  other  affidavit. 
And  yet,  if  that  prayer  had  been  granted,  the  jury  would  have 
been  authorized  in  finding,  that  these  proceedings  in  ejectment 
were  a  conclusive  bar  to  the  rights  of  the  appellant;  if  they 
found  that  the  affidavit,  no  matter  at  what  time,  had  been  sub- 
mitted to  the  court,  or  approved  of,  or  seen  by  it,  or  been  held 
by  it  sufficient,  under  the  said  statute  of  George  2nd;  or  if  the 
jury  found  that  any  other  affidavit  had  been  made  in  the  case, 
no  matter  when  made,  or  what  it  might  be. 

The  prayers  of  the  appellant  having  been  rejected  by  the 
county  court,  the  appellees  prayed  the  court  to  direct  the  jury, 
that  if  they  should  find  that  the  defendant,  Sarah,  became  enti- 
tled to  the  reversion  of  the  ground  declared  for,  as  stated  in 
the  testimony,  and  recovered  possession,  and  took,  and  has 
ever  since  held  possession  thereof,  in  the  year  1824,  as  shown 
by  the  record  of  recovery  given  in  evidence,  and  that  this 
action  was  instituted  on  the  19th  day  of  April  1841,  then  the 
plaintiff  is  not  entitled  to  recover:  which  prayer  was  granted, 
and  in  doing  so,  the  county  court  erred,  for  the  reasons  stated 
by  us  in  our  examination  of  the  courts  refusal  of  the  appel- 
lant's first  prayer.  It  also  erred  for  another  reason.  It  called 
on  the  court,  to  submit  to  the  finding  of  the  jury,  a  fact  of 
which  there  was  no  testimony;  but  which  was  conclusively 


216  CASES  IN  THE  COURT  OF  APPEALS 

Walter  use  of  Walter,  vs.  Warfield  et  al.— 1844. 

disproved  by  the  testimony  of  both  parties.  It  required  the 
court  to  direct  the  jury,  that  if  they  should  find  that  the  defen- 
dant, Sarah,  became  entitled  to  the  reversion  of  the  ground, 
declared  for,  &c.,  then  the  plaintiff  is  not  entitled  to  recover. 
Both  the  lease  from  Daniel  Bowhy  to  Solomon  Etting,  and  the 
deed  for  the  ground  rent,  and  reversion  from  Daniel  Bowley  to 
John  Merryman,  under  whom  the  defendant  Sarah  claims  title, 
shew,  that  she  was  not  entitled  to  the  reversion  of  the  lot  of 
ground  for  which  the  ejectment  was  brought;  but  for  a  lot  of 
different  and  smaller  dimensions.  And  it  is  somewhat  remark- 
able, that  the  alleged  recovery  of  the  lot  of  ground,  by  Sarah, 
the  defendant  in  the  action  of  ejectment  under  the  statute  of 
4  Geo.  2,  c.  28,  was  not  of  the  lot  leased,  as  aforesaid,  by 
Daniel  Bowley,  and  to  the  ground  rent  and  reversion  of  which 
she  was  entitled;  but  of  a  lot  of  larger  dimensions. 

Dissenting  from  the  county  court,  in  its  refusals  to  grant  all 
the  prayers  of  the  plaintiff,  and  in  its  granting  of  the  defen- 
dants prayer,  we  reverse  its  judgment. 

JUDGMENT  REVERSED  AND  PROCEDENDO  ISSUED. 


JOHN  WALTER,  USE  OF  SUSANNA  WALTER,  vs.  DANIEL  WAR- 
FIELD,  AND  OTHERS. — December,  1844. 

D.  sued  out  a  writ  of  replevin,  and  gave  the  usual  bond,  with  the  other  defen- 
dants as  his  sureties,  to  J,;  at  the  trial  of  the  replevin,  the  defendant,  J., 
pleaded  noncepit,  and  property  in  S.;  and  the  plaintiff,  D.,  pleaded  property 
in  himself.  The  issues  were  found  for  J.,  with  a  judgment  for  a  return  of 
property.  In  an  action  on  the  replevin  bond,  entered  for  the  use  of  S.,  the 
defendants,  D.  and  his  sureties,  were  permitted  to  prove  in  mitigation  of 
damages,  that  the  property  really  belonged  to  S.,  that  J.  had  no  personal 
interest  in  it;  and  maintain,  that  he  could  recover  in  this  action  only  the 
amount  of  damage  sustained  by  him,  personally,  in  consequence  of  the 
property  being  taken  from  his  possession,  and  could  not  increase  the 
damages  to  the  extent  of  <S"s  right,  by  showing  that  he  was  her  agent. 

The  damages  which  an  obligee  in  a  replevin  bond  can  recover  from  the  ob- 
ligors,  are  only  such  as  he  has  suffered  personally,  by  reason  of  the  institu- 
tion and  failure  of  the  action  of  replevin. 


OF  MARYLAND.  217 


Walter  use  of  Walter,  vs.  Warfield  et  al.— 1844. 


APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  debt,  commenced  on  the  18th  August 
1838,  by  the  appellants  against  the  appellees.  The  plaintiffs 
declared  on  a  bond  of  Daniel  Warfield  and  his  sureties,  to  John 
Walter,  to  prosecute  the  action  of  replevin,  mentioned  in  the 
exceptions,  with  effect,  dated  25th  July  1836.  The  defendant 
pleaded  general  performance;  and  the  plaintiff  replied  by  way 
of  breach,  setting  out  the  proceedings  in  replevin ;  and  the 
judgment  thereon,  that  the  plaintiffs,  the  appellees  aforesaid, 
"should  take  nothing  by  their  writ,  and  that  the  said  Walter 
should  have  a  return  of  the  said  goods  and  chattels,  in  said 
condition  mentioned,  to  be  detained  to  him  forever  irreplevi- 
able,  and  that  he  should  recover  his  costs  &c. ;"  that  no  re- 
turn was  made,  nor  costs  paid,  and  so,  &c.  Rejoinder  by  the 
appellees,  that,  &c.,  in  said  condition  mentioned,  did  well  and 
truly  return  the  goods  and  chattels,  &c.,  on  which  issue  was 
joined. 

The  plaintiff,  to  support  the  issue  on  his  part,  offered  in  evi- 
dence the  replevin  bond,  the  record  in  the  replevin  suit,  men- 
tioned in  the  condition  of  said  bond,  and  the  docket  entries,  as 
follows : 

"Daniel  Warfield  and  Samuel  Mactier  vs.  John  Walter. 
Replevin,  nar.  and  notice  to  plead,  filed.  Replevied  and  de- 
livered, as  per  schedule,  and  defendant  summoned.  1st  Sep- 
tember 1836 — -appearance,  rule,  plea ;  same  day,  motion  for 
a  return  of  property.  30th  December  1836 — pleas,  non-cepit, 
and  property,  and  notice  to  reply  filed ;  rule,  replication,  ser- 
vice of  copy  and  notice  of  rule  admitted;  same  day,  similiter 
lo  1st  plea,  and  general  replication  to  2nd  plea  filed,  service 
of  copy  admitted,  continued.  January  1837,  continued.  May, 
continued.  September,  continued.  January  1838,  continued. 
May  term — 15th  June  1838,  jury  sworn.  18th  June  1838, 
verdict  for  the  defendant.  Judgment  on  the  verdict  for  a  re- 
turn of  property  and  costs. 

Defendant's  costs,  $49.39£. 

Test,  THOS.  KELL,  Clk." 

28        2v. 


218  CASES  IN  THE  COURT  OF  APPEALS 


Walter  use  of  Walter,  vs.  Warfield  et  al. — 1844. 


The  defendant,. 7o/m  Walter,  in  the  action  of  replevin,  pleaded. 
1st,  non-cepit.  2nd,  property  in  Susanna  E.  Walter. 

The  plaintiffs,  W.  and  M.,  joined  issue  on  the  1st  plea.  2nd 
plea,  property  in  themselves. 

And  further  to  prove  the  said  issue,  the  plaintiff  offered  tes- 
timony by  Hiram  C.  Walter,  of  the  value  of  the  property  taken 
by  the  said  writ  of  replevin. 

The  defendants,  in  order  to  show  that  the  property  in  ques- 
tion was  not  in  the  plaintiff,  at  the  institution  of  the  said 
action  of  replevin,  but  in  a  certain  Susanna  E.  Walter,  the 
same  person  mentioned  in  the  plea  of  the  present  plaintiff,  filed 
by  him  as  defendant  in  the  said  action  of  replevin,  and  making 
said  offer  only  with  a  view  to  mitigate  the  damages  in  the  pre- 
sent action,  proposed  to  ask  said  witness  if  he  was  not  the 
original  owner  of  said  property,  and  whilst  such,  did  not  exe- 
cute a  bill  of  sale  of  said  property,  conveying  and  transferring 
the  same  to  said  Susanna  E.  Walter,  and  in  connexion  with 
said  proof,  offered  with  the  like  purpose  to  read  in  evidence  to 
the  jury,  an  authenticated  copy  of  said  bill  of  sale,  to  said  Su- 
sanna from  said  Hiram,  and  to  prove  that  the  said  bill  of  sale 
contains  and  conveys  the  property  in  dispute  in  this  case.  The 
bill  of  sale  was  dated  16th  May  1835. 

To  the  admissibility  of  which  evidence  the  plaintiff's  counsel 
objected,  but  the  court  (PURVIANCE,  A.  J.,)  overruled  the  ob- 
jection, and  suffered  the  said  proposed  evidence  to  be  given  to 
the  jury  in  the  present  case,  as  evidence  in  mitigation  of  dama- 
ges, for  the  purpose  for  which  the  same  was,  as  aforesaid, 
offered  to  be  given  ;  the  plaintiff  excepted. 

2ND.  EXCEPTION.  The  plaintiff  and  defendants  having  given 
the  evidence  in  support  of  the  issue  on  their  respective  parts, 
stated  in  the  aforegoing  bill  of  exceptions,  and  which  is  made 
part  of  this  exception,  the  plaintiff  to  show  himself  entitled  to 
recover  for  said  Susanna's  benefit  the  full  value  of  the  chattels 
mentioned  in  this  suit,  further  offered  to  prove,  that  the  plaintiff, 
at  the  time  of  the  replevying  of  said  chattels,  held  and  claimed 
the  same  only  as  agent  of  said  Susanna  E.  Walter,  named  in 
the  pleadings  in  said  replevin  suit,  and  that  the  plaintiff  de- 


OF  MARYLAND.  219 


Walter  use  of  Walter,  vs.  Warfield  et  al.— 1844. 

fended  the  same  for  her,  and  at  her  expense,  and  under  her 
direction  ;  and  that  this  suit  was  instituted  at  her  instance  and 
for  her  use,  and  has  been  conducted  by  the  plaintiff  for  her  use, 
and  at  her  expense;  and  that  this  suit  has  been  entered  for  her 
use  on  the  docket,  under  an  order  signed  by  the  plaintiff,  but 
for  the  first  time  this  day  by  virtue  of  the  order  signed  as  afore- 
said, dated  and  filed  this  day,  and  which  order  is  as  follows : 

"John  Walter  vs.  Daniel  Warfield  and  others.  In  Baltimore 
county  court.  Mr.  Kelt, — Enter  this  case  for  the  use  of  Su- 
sanna E.  Walter.  JOHN  WALTER.  CHARLES  F.  MAYER, 
Plff's  Att'y.  13th  December  1842." 

But  the  defendant  objected  to  the  admission  of  said  testi- 
mony, offering  at  the  same  time  to  give  in  evidence,  that  hereto- 
fore, to  wit,  on  30th  December  1836,  there  was  brought  by  said 
Susanna  against  the  said  defendant,  Warfield,  and  Mactier  his 
partner,  plaintiffs  in  said  replevin,  an  action  of  trespass,  for  the 
taking  and  carrying  away,  by  virtue  of  said  replevin,  the  same 
property,  the  value  of  which  is  now  sought  to  be  recovered  for 
her  use  in  this  action,  in  the  manner  stated  in  this  exception  ; 
and  that  in  the  said  action  of  trespass,  she  recovered  a  verdict 
and  judgment  in  Baltimore  county  court,  at  September  term, 
1838;  but  which  judgment  was  afterwards  reversed,  on  appeal, 
by  the  Court  of  Appeals,  upon  the  ground  that  the  form  of 
action  was  misconceived,  as  well  as  upon  the  error  of  opinion 
of  the  county  court  in  the  third  exception  in  said  case,  (it  be- 
ing agreed,  that  the  record  of  said  case  in  the  Court  of  Appeals, 
and  the  statement  of  the  case,  and  the  opinions  of  the  county 
court  and  of  the  Court  of  Appeals,  shall  be  read  in  argument 
of  this  case  in  the  Court  of  Appeals,  from  the  report  of  the 
case  in  11  GUI  <§f  Johnson's  reports,  page  80,  &c.,  to  have  the 
same  effect  as  if  said  case  were  set  out  at  length  in  this  ex- 
ception.) 

The  plaintiff  then,  in  further  support  of  the  issue  on  his 
part,  offered  to  prove,  that  the  present  suit  was  suspended  on 
his  part,  from  the  time  of  its  institution  until  the  decision  had 
taken  place  in  the  above  mentioned  case  of  trespass,  and  pur- 
posely so,  to  abide  the  issue  of  said  trespass  case ;  the  defen- 


220  CASES  L\  THE  COURT  OF  APPEALS 

Walter  use  of  Walter,  vs.  Warfield,  et  al.— 1844. 

dants,  however,  not  being  informed  of  such  purpose,  nor  their 
counsel,  until  yesterday,  after  the  case  was  called,  the  jury 
sworn,  and  the  plaintiff  had  given  his  evidence  stated  in  his 
first  exception,  (the  offer  of  this  latter  evidence  so  stated  as 
made  by  the  plaintiff  in  this  exception,  was,  however,  after 
this  suit  was,  as  aforesaid,  entered  for  the  use  of  said  Susanna;) 
and  the  court  refused  to  allow  the  testimony  of  the  plaintiff, 
offered  as  aforesaid,  to  be  given.  To  the  admission  whereof, 
the  defendants  had,  as  above  stated,  objected,  upon  the  ground 
as  well  of  the  evidence  stated  as  aforesaid,  by  the  defendants, 
as  upon  the  general  ground,  that  the  evidence,  so  objected  to, 
was  inadmissible;  and  the  court,  (PURVIANCE,  A.  J.,)  being 
of  opinion  and  so  directing  the  jury,  that  the  plaintiff  can  re- 
cover in  this  action  only  the  amount  of  damage  sustained  by 
him  personally,  in  consequence  of  the  taking  of  the  property 
from  his  possession.  And  the  plaintiff  objecting  to  the  testi- 
mony offered,  as  aforesaid,  by  the  defendants,  as  set  forth  in  this 
exception,  the  court  overruled  the  objection  and  allowed  said 
testimony  to  be  given.  Whereupon,  to  said  direction  of  the 
court,  and  to  the  refusal  of  the  court  to  allow  to  be  given  the 
testimony  aforesaid,  offered  by  the  plaintiff,  and  to  the  court's 
admission  of  that  offered  as  aforesaid  by  the  defendants,  the 
plaintiffs  excepted. 

SRD.  EXCEPTION.  The  plaintiff  and  defendants  having  res- 
pectively offered  the  evidence  to  support  the  issue  on  their 
parts,  stated  in  the  aforegoing  bills  of  exceptions,  which  was 
admitted  as  evidence,  and  not  excluded,  and  which  is  made 
part  of  this  bill  of  exceptions,  the  plaintiff  prayed  the  court  to 
direct  the  jury,  that  on  the  evidence  gben  in  this  cause,  if 
believed  by  the  jury,  the  plaintiff  is  entitled  to  recover  the 
value  of  the  property  mentioned  in  the  schedule,  returned  wilh 
the  writ  of  replevin,  and  offered  in  evidence,  notwithstanding 
they  may  find,  that  at  the  date  of  the  institution  of  said  replevin 
suit,  and  at  the  date  of  the  bringing  of  the  present  suit,  the 
title  to  said  property  was  in  Susanna  E.  Walter,  or  any  other 
person.  But  the  court  refused  to  give  said  direction ;  to  which 
refusal,  the  plaintiff  excepted. 


OF  MARYLAND.  221 


Addison  »*.  Hack. — 1844. 


The  jury  found  their  verdict  for  the  plaintiff,  and  assessed 
his  damages  at  $50,  and  his  claim  being  for  a  much  larger 
sum,  he  prosecuted  the  present  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSET, 
CHAMBERS  and  SPENCE,  J. 

By  MAYER  for  the  appellants,  and 

By  WARD  and  REVERDY  JOHNSON  for  the  appellees. 

BY  THE  COURT. 

JUDGMENT  AFFIRMED. 

NOTE. — The  court  refused  the  application  of  the  appellant, 
to  hear  a  re-argument  of  this  cause. 


EDMUND  B.  ADDISON  vs.  ANDREW  HACK — December,  1844. 

In  an  action  relating  to  lands,  if  the  defendant  does  not  take  defence  or  war- 
rant, the  plaintiff  is  under  no  obligation  to  ask  for  a  warrant  to  locate  his 
land,  or  any  of  the  matters  in  controversy,  between  the  parties. 

In  such  case,  without  plots,  he  may  read  his  title  papers  in  evidence ;  prove 
his  possessions  under  them ;  and  show  by  oral,  and  other  testimony,  the 
injury  he  complains  of,  and  for  which  he  seeks  indemnity. 

In  an  action  for  damages,  for  diverting  the  course  of  a  stream  from  its  natural 
channel,  on  the  plaintiff's  land,  the  defendant  may  show,  that  the  diversion 
was  made  on  his  lands  above  those  of  the  plaintiff,  and  that  it  was  rather 
a  benefit,  than  an  injury  to  the  plaintiff;  or  that  it  was  made  in  virtue  of  a 
verbal  agreement  between  plaintiff  and  defendant,  that  the  latter  might 
make  the  diversion,  for  the  purpose  of  working  a  mill  to  be  erected  by  the 
defendant  on  his  own  land,  if  the  defendant  would  allow  the  plaintiff  the 
use  of  a  road  through  the  defendant's  land,  and  the  execution  of  such  agree- 
ment, or  that  the  plaintiff  entered  into  such  a  contract  with  the  defendant, 
conferring'the  privilege,  with  a  fraudulent  design,  and  for  the  pu/pose,  of 
extorting  money  from  him. 

Such  evidence  is  admissible  in  mitigation  of  damages;  and  for  the  purpose 
of  showing  that  the  defendant  was  not  a  trespasser,  ab  initio,  for  continuing 
the  diversion  after  a  countermand  of  his  authority  by  the  plaintiff;  or  that 
he  could  not  be  made  responsible  in  damages  for  acts  done  upon  his  own 
land,  with  the  verbal  permission  and  authority  of  the  plaintiff. 

The  maxim,  "volenti  non  fit  injuria,"  illustrated. 

Where  one  party  authorises  another  to  divert  the  channel  of  a  stream,  flow- 
ing  through  the  lands  of  both,  by  means  of  a  license  which  is  countermanda- 


222  CASES  IN  THE  COURT  OF  APPEALS 

Addison  vs.  Hack.— 1844. 


ble  in  its  nature,  and  the  authority  is  exercised  as  granted,  the  party  who  has 
the  power  of  countermand,  can  only  be  restored  to  his  rights,  by  doing 
justice  to  the  other,  and  tendering  him  the  expense  which  he  has  incurred 
under  the  license. 

Where  the  plaintiff  verbally  agreed  to  abandon  the  use  of  a  stream  of  water 
in  the  manner  in  which  it  had  been  accustomed  to  flow  on  his  land,  and 
the  abandonment  was  consummated  by  the  execution  of  his  license,  from 
that  moment,  his  right  to  the  use  of  the  water,  as  it  formerly  flowed  in  its 
natural  channel,  became  extinct;  and  it  was  no  longer  appurtenant  to  his 
land. 

Such  license  conveys  no  estate,  interest,  or  use  in  the  land  ;  is  not  within  our 
registry  acts ;  nor  calculated  to  mislead  purchasers. 

A  prominent  object  of  our  enrolment  laws  is  the  protection  of  purchasers. 

A  grant,  not  acknowledged,  nor  recorded,  of  a  power  to  divert  the  course  of 
a  stream,  which  flowed  through  the  grantor's  land,  but  which  power  had  not 
been  executed,  would  not  be  a  bar  to  a  subsequent  bona  fide  purchaser,  for 
a  valuable  consideration,  without  notice,  claiming  the  water  right  naturally 
incident  to  the  lands  he  had  purchased.  To  interpose  such  a  bar,  in  such 
a  case,  the  same  conformity  to  the  registry  laws  is  necessary,  as  if  land 
were  the  subject  of  the  grant. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  upon  the  case  brought  to  the  April 
term,  1841,  of  said  court,  by  the  appellee,  against  the  appel- 
lant, to  recover  damages  for  diverting -a  rivulet  out  of  its  an- 
cient channel,  through  the  land  of  the  plaintiff,  whereby  the 
plaintiff  was  deprived  of  the  use,  &c.  The  defendant  pleaded 
non  cul.,  on  which  issue  was  joined. 

IST.  EXCEPTION.  At  the  trial  of  this  cause,  the  plaintiff, 
to  support  the  issue  on  his  part,  read  in  evidence  to  the  jury, 
subject  to  exceptions,  a  patent  dated  10th  May  1754,  for  a 
tract  of  land  called  "Soldiers  Delight,"  and  also  a  patent  for 
another  tract  of  land  called  "Timber  Grove;"  in  both  of  which 
patents,  the  lands  therein  mentioned  are  described  by  metes 
and  bounds;  and  then,  for  the  purpose  of  showing  that  the 
tract  of  land  mentioned  in  the  declaration,  was  part  of  the  land 
mentioned  in  said  two  patents,  read  to  the  jury,  (subject  to  all 
exceptions  to  the  competency  or  admissibility  of  said  proof, 
for  the  purpose  aforesaid,)  a  deed  from  to  Ellis 

Jongs,  dated  16th  June,  1811;  a  deed  from  to 

Charles  Wilier  son  to  Hill,  dated  10th  March  1821 ;  and 

a  deed  from  said  Hill  and  wife  to  Pennington,  dated  1st 


OF  MARYLAND.  223 


Addison  vs.  Hack. — 1844. 


August  1834.  The  will  of  said  Pennington,  admitted  to  pro- 
bate 18th  March  1837,  authorising  Andrew  Hack,  (his  execu- 
tor,) to  sell  and  convey  the  land  therein  mentioned,  upon  a 
deficiency  of  the  testator's  personal  estate,  to  pay  his  debts ; 
and  lastly,  the  deed  of  the  said  Andrew  Hack,  (executor,)  to 
the  plaintiff,  dated  5th  March  1840 ;  all  of  which  deeds  and 
said  last  will,  it  is  admitted,  purport  and  profess  to  convey  or 
devise,  by  certain  boundaries  therein  mentioned,  "Part  of 
Soldiers  Delight,"  and  the  whole  of  "Timber  Grove,"  And 
the  plaintiff  further  proved,  that  he  and  those  under  whom  he 
claims,  have  been  in  possession  of  the  lands  mentioned  in  the 
declaration,  for  twenty-five  years,  last  past,  claiming  to  hold  the 
same  under  said  patents  and  deeds  aforesaid;  and  that  the  land 
from  which  the  stream  of  water  was  diverted  by  defendant,  as 
alleged  in  the  declaration,  has  been  for  twenty-five  years  reputed 
and  known  as  "Soldiers  Delight."  And  the  plaintiff  gave  evi- 
dence to  show  the  diversion  of  the  water  by  defendant,  previous 
to  this  suit,  so  as  to  prevent  it  from  flowing  on  said  land  in  its 
accustomed  channel,  as  it  had  done  before  such  diversion,  and 
rested  his  case.  Whereupon,  the  counsel  for  the  defendant, 
then  moved  the  court  to  exclude  from  the  consideration  of  the 
jury,  the  patent,  deeds  and  will  aforesaid,  on  the  ground,  that 
the  land  in  controversy,  is  not  shown  to  be  the  same  as  that  men- 
tioned in  said  patent,  deeds  and  will.  And  the  defendants  coun- 
sel accompanied  said  motion  with  an  admission,  that  previous 
to  the  trial  of  this  cause,  and  when  the  plaintiff  was  about  to 
obtain  a  warrant  of  survey  for  the  purpose  of  locating  his  pre- 
tensions, the  defendant  agreed  that  the  plaintiff  should,  on 
the  trial  of  this  cause,  introduce  evidence  for  the  purpose  of 
locating  his  title  papers  and  the  boundaries  thereof,  the  same 
as  if  he  had  sued  out,  and  proceeded  to  have  a  warrant  of  sur- 
vey executed  in  due  form  of  law.  But  the  court,  (ARCHER, 
C.  J.,)  refused  to  sustain  said  motion,  and  instructed  the  jury, 
that  said  patents,  deeds,  will,  and  possession,  were  compe- 
tent evidence  in  this  cause,  for  the  purpose  of  showing  title  in 
the  plaintiff  to  the  lands  in  the  declaration  mentioned.  To 
which  refusal  and  instruction  of  the  court,  the  defendant  ex- 
cepted. 


224  CASES  IN  THE  COURT  OF  APPEALS 

Addison  vs.  Hack, — 1844. 

SND.  EXCEPTION.  After  the  evidence  contained  in  the  afore- 
going bill  of  exceptions  (made  part  thereof,)  had  been  given, 
the  defendant,  to  support  the  issue  on  his  part,  gave  evidence 
tending  to  show,  that  there  was  water  at  all  times  before  this 
suit,  flowing  on  the  land  claimed  by  plaintiff,  in  its  accus- 
tomed channel,  sufficient  for  plaintiffs  use ;  and  the  diversion 
of  said  stream  of  water  by  defendant,  was  partial,  and  in  no 
way  injured  the  plaintiff,  but  benefitted  his  lands,  by  preventing 
the  accumulation  of  water  in  the  low  grounds,  through  which 
the  said  stream  flowed  ;  and  that  said  diversion  took  place  at 
a  point  above  plaintiffs  lands ;  and  further  proved,  that  such 
was  the  situation  of  that  part  of  plaintiffs  lands  through  which 
said  stream  flowed  ;  that  the  said  stream  could  not  be  used  for 
the  purpose  of  working  machinery  on  said  land,  as  it  had  no 
fall  on  said  land.  The  defendant  then  offered  to  prove,  by 
parol  evidence,  that  long  previous  to  this  suit,  and  before  the 
diversion  of  the  water,  as  aforesaid,  it  was  agreed,  verbally, 
between  plaintiff  and  defendant,  that  the  defendant  might 
divert  the  said  stream  in  the  manner  now  complained  of,  for 
the  purpose  of  working  a  mill  about  to  be  erected  by  defen- 
dant on  his  lands,  if  he,  the  defendant,  would  allow  plaintiff 
the  use  of  a  certain  way  or  road  leading  from  plaintiffs  lands 
over  and  through  defendants.  And  that  in  pursuance  of  said 
agreement,  the  plaintiff  was  allowed  the  use  of  said  way  or 
road,  and  did  use  the  same ;  and  the  defendant  went  on,  at 
great  expense  (upwards  of  $4000,)  and  labor,  with  the  know- 
ledge of  the  plaintiff,  and  without  any  objection  on  his  part, 
but  was  encouraged  by  him,  to  erect  and  complete  his  mill  as 
before  agreed  ;  and  while  the  same  was  in  operation  1o  supply 
the  same  with  the  stream  aforesaid,  as  agreed,  without  which 
the  mill  could  not  be  used  ;  and  that  no  objection  was  made 
by  plaintiff  to  defendant's  diverting  said  stream  as  aforesaid, 
until  after  the  completion  of  said  mill,  and  shortly  before  bring- 
ing this  suit;  and  further  offered  evidence  to  show,  that  in  case 
said  stream  is  withdrawn  from  defendants  mill,  and  wholly 
restored  to  its  ancient  channel,  the  defendants  mill  would  be 
rendered  useless  and  of  no  value ;  and  that  before  this  suit, 


OF  MARYLAND.  225 


Addison,  vs.  Hack.— 1844. 


and  soon  after  the  completion  of  said  mill,  the  plaintiff  de- 
manded a  large  pecuniary  compensation  from  defendant,  for 
the  further  use  of  said  stream  as  aforesaid,  or,  that  said  dam 
should  be  abated.  That  the  aforegoing  facts  were  offered,  to 
show,  that  said  parol  agreement  or  license,  was  made  by  the 
plaintiff,  with  a  view  to  entrap  the  defendant  into  the  erection 
of  the  said  mill  and  dam,  upon  the  faith  of  the  said  contract 
and  license,  and  with  a  design,  when  the  same  should  be  com- 
pleted, fraudulently  to  use  them  as  a  means  of  extorting  from 
the  defendant,  by  threatening  to  deprive  him  of  the  use  of  the 
water  for  his  mill,  unless  he  would  pay  what  he,  the  plaintiff, 
should  demand  from  him.  But,  upon  the  objection  of  the  plain- 
tiff's counsel,  the  court,  (ARCHER,  C.  J.,)  refused  to  permit  the 
above  facts  to  go  to  the  jury  for  the  purpose  aforesaid.  The 
defendant  excepted,  &c. 

The  verdict  and  judgment  being  against  the  defendant,  he 
appealed  to  this  court. 

The  cause  was  argued  before  DORSEY,  CHAMBERS,  and 
SPENCE,  J. 

By  ADDISON  for  the  appellant,  and 

By  RICHARDSON,  dep.  att.  gen-,  for  the  appellee. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

The  only  question,  discussed  by  the  appellant's  counsel,  and 
on  which  the  opinion  of  this  court  was  called  for,  on  the  first 
bill  of  exceptions  was,  whether,  as  the  plaintiff  had  not  located 
the  patents  and  title  papers  of  his  land  upon  plots  returned  to 
the  court,  under  a  warrant  of  re-survey  issued  for  that  purpose, 
he  could  give  such  patents  and  title  papers  in  evidence  to  the 
jury,  and  prove,  that  the  grievance  complained  of,  was  perpe- 
trated by  the  defendant  in  respect  of  those  lands. 

In  an  action  relating  to  lands,  if  the  defendant  does  not  see 
fit  to  take  defence  on  warrant,  the  plaintiff  is  under  no  obliga- 
tion to  ask  for  a  warrant  to  locate  his  land,  or  any  of  the  mat- 
ters in  controversy  between  the  parties.  Without  such  plots 
he  may  read  his  title  papers  in  evidence  to  the  jury;  prove  his 
29  v.2 


226  CASES  IN  THE  COURT  OF  APPEALS 

Addison,  vs.  Hack. — 1844. 

possessions  under  them,  and  show  by  oral  or  other  testimony 
the  injury  he  complains  of;  and  for  which  he  seeks  indemnity. 
The  case  of  Medley  I's.  Williams,  et  al.,  Lessee,  the  only  case 
relied  on  by  the  appellant  as  sustaining  his  position,  bears  no 
resemblance  to  the  case  now  before  us.  There,  defence  was 
taken  on  warrant,  and  locations  made,  and  this  court  held  that 
a  title  paper,  of  which  there  was  no  location,  could  not  pro- 
perly be  offered  in  evidence;  on  the  well  established  principle 
of  correspondence  between  the  pleadings  and  the  proof.  But 
here,  no  warrant  of  survey  being  required  by  either  plaintiff  or 
defendant,  no  plots  or  locations  could  be  made  in  the  cause. 
The  county  court,  therefore,  are  exempt  from  the  error  com- 
plained of  in  the  first  bill  of  exceptions. 

But  the  county  court,  we  think,  erred  in  rejecting  the  testi- 
mony offered  by  the  appellant  in  his  second  bill  of  exceptions. 
The  plaintiff  having  offered  the  testimony  stated  in  the  first  bill 
of  exceptions,  showing  the  diversion  of  the  stream  from  its 
natural  channel,  on  his  land,  where  it  was  accustomed  to  flow; 
the  defendant  offered  evidence  to  show,  that  the  diversion  of 
the  water  complained  of,  was  made  on  the  lands  of  the  defen- 
dant, above  the  lands  of  the  plaintiff,  and,  that  it  was  rather  a 
benefit  than  an  injury  to  his  lands;  and  that  it  was  made  in 
virtue  of  a  verbal  agreement,  entered  into  by  the  plaintiff  and 
defendant;  by  which,  it  was  agreed,  that  the  defendant  might 
make  the  diversion,  as  now  complained  of,  for  the  purpose  of 
working  a  mill,  to  be  erected  by  the  defendant  on  his  own 
land;  if  he,  the  defendant,  would  allow  the  plaintiff  the  use  of 
a  wagon  road,  from  the  lands  of  the  plaintiff,  over  the  lands  of 
the  defendant.  That,  in  pursuance  of  the  agreement,  the 
plaintiff  used  the  said  road;  and  the  defendant,  at  an  expense 
of  upwards  of  $4000,  (encouraged  so  to  do  by  the  plaintiff,) 
erected  the  said  mill;  which  mill  was  of  no  value,  without  the 
said  privilege  of  diverting  the  water,  as  aforesaid.  That  the 
plaintiff  made  no  objection  to  the  diverting  of  the  stream  of 
water,  till  shortly  after  the  completion  of  the  mill;  when  the 
plaintiff  demanded  of  the  defendant  a  large  pecuniary  compen- 
sation for  the  use  of  the  water;  and  that  the  dam,  erected  on 


OK  MARYLAND.  227 


Addison,  vs.  Hack — 1844. 


the  defendant's  land  for  the  diversion  of  the  same,  should  be 
abated;  and,  that  the  aforesaid  conduct  of  the  plaintiff  was 
fraudulently  designed,  for  the  purpose  of  extorting  money  from 
the  defendant.  Upon  the  objection  of  the  plaintiff's  counsel, 
the  court  refused  to  permit  the  aforegoing  facts  to  go  to  the 
jury:  and  in  so  doing,  we  think,  the  county  court  were  clearly 
in  error.  If  admissible  for  any  purpose,  the  court  was  not 
authorized  in  rejecting  the  testimony.  In  mitigation  of  dama- 
ges it  was  surely  admissible;  but  it  was  admissible,  as  evi- 
dence, upon  other  grounds,  and  for  other  purposes.  For  even 
conceding,  what  we  by  no  means  admit  to  be  true,  that  the 
aforementioned  agreement  did  not  confer  on  the  defendant  a 
privilege  or  license,  to  divert  and  use  the  water  which  the 
plaintiff  could  not,  at  pleasure,  countermand;  yet,  as  the  defen- 
dant had  done  no  act  towards  diverting  the  water  from  its  ac- 
customed flow,  over  the  lands  of  the  plaintiff,  since  the  coun- 
termand, he  could  not,  by  such  countermand,  be  rendered  a 
wrong  doer,  ab  initio ;  or  be  made  responsible  in  damages  for 
acts  done  upon  his  own  land,  and  with  the  express  permission 
and  authority  of  the  plaintiff  himself.  If  ever  the  maxim, 
"volenti  nonfit  injuria,"  was  applicable  to  any  case,  it  must 
be  conclusive  on  this. 

But,  regarding  this  license  as  countermandable,  upon  what 
terms  is  the  plaintiff  to  be  restored  to  his  former  rights?  Can 
he  require  of  the  defendant  to  be  at  the  expense,  and  endure 
the  labor,  of  removing  structures  lawfully  erected,  and  by  the 
express  authority  of  the  plaintiff?  The  manifest  injustice  of 
such  a  requisition,  is  an  answer  to  the  question.  How,  then, 
is  the  plaintiff  to  be  restored  to  rights  which  he  is  authorised 
to  demand?  By  doing  justice  to  the  defendants:  by  tendering 
to  him  the  expense  which  he  has  incurred,  under  the  license. 
This  principle  was  announced  in  the  case  of  Winter  vs.  Brock- 
well,  8  East,  308.  Where  an  action  being  brought  for  a  pri- 
vate nuisance,  by  the  erection  of  a  sky- light  over  the  defen- 
dant's open  area;  at  the  trial,  the  defence  set  up  was,  that  the 
area,  which  belonged  to  the  defendant's  house,  had  been  en- 
closed and  covered  by  a  sky-light,  in  the  manner  stated,  with 


228  CASES  IN  THE  COURT  OF  APPEALS 

Addison,  vs.  Hack. — 1844. 

the  express  consent  and  approbation  of  the  plaintiff,  obtained 
before  the  enclosure  was  made;  who,  also,  gave  leave  to  have 
part  of  the  frame  work  nailed  against  his  wall.  But,  sometime 
after  it  was  finished,  the  plaintiff  objected  to  it;  and  gave  no- 
tice to  have  it  removed.  But  Lord  Ellenborough  "was  of 
opinion,  that  the  license  given  by  the  plaintiff  to  erect  the  sky- 
light, having  been  acted  upon  by  the  defendant,  and  the  ex- 
pense incurred,  could  not  be  recalled,  and  the  defendant  made 
a  wrong-doer:  at  least,  not  without  putting  him  in  the  same 
situation  as  before,  by  offering  to  pay  all  the  expense  which 
had  been  incurred  in  consequence  of  it;  and,  under  this  direc- 
tion, the  defendant  obtained  a  verdict."  In  this  case  in  East, 
there  was  no  consideration  given  for  the  license;  and  the  nui- 
sance, by  which  the  plaintiff  suffered  from  the  acts  done  under 
it,  was  a  serious  one;  and  yet,  Lord  Ellenborough  subsequent- 
ly, on  a  motion  for  a  new  trial,  after  stating  that  he  had  looked 
into  the  books  on  the  point,  reiterates  the  doctrine  that  he  had 
before  laid  down,  except  as  to  tender  of  expense  to  be  made 
to  the  defendant;  and  states,  that  in  one  of  the  cases  to  which 
he  refers,  "Haughton  J.  lays  down  the  rule,  that  a  license  exe- 
cuted is  not  countermandable;  but  only  when  it  is  executory." 
The  testimony  offered  by  the  appellant  in  the  case  before  us, 
is  not  only  admissible,  but  is,  if  believed  by  the  jury,  a  conclu- 
sive bar  to  the  right  of  action  of  the  appellee.  Such  was  the 
decision  in  the  case,  (almost  identical  with  the  present,)  of 
Liggins  vs.  Inge,  1  Bingham,  682,  reported  in  20  Eng.  C.  L. 
Rep.  290;  and  to  that  effect  are  the  cases  above  referred  to  by 
Lord  Ellenborough.  And  Kezick  vs.  Kern,  14  Serg.  $  Rawls, 
267.  The  opinion  now  given,  is  not,  as  was  urged  in  the  ar- 
gument for  the  appellee,  in  conflict  with  the  decision  of  this 
court,  in  the  case  of  Hays  vs.  Richardson,  1  Gill  fy  Johns. 
366.  There  the  right,  claimed  under  an  instrument  of  writing, 
not  acknowledged  and  recorded,  agreeably  to  the  registry  laws 
of  the  State,  was  a  right  of  way  over  the  lands  of  the  person 
intending  to  grant  it,  and  was  an  use,  thereof,  to  the  extent  of 
the  right  asserted ;  and  came  within  the  very  terms  of  the  act 
of  Assembly  for  the  enrolling  of  conveyances,  viz:  that  "no 


OF  MARYLAND.  229 


Addison,  vs.  Hack. — 1844. 


manors,  lands,  tenements,  or  hereditaments  whatever,  within 
this  province,  shall  pass,  alter,  or  change  from  one  to  another, 
whereby  the  estate  of  inheritance  or  freehold,  or  any  estate  for 
above  seven  years,  shall  be  made  or  take  effect  in  any  person 
or  persons,  or  any  use  thereof  to  be  made,  &c.,"  unless  the 
conveyance  be  executed,  acknowledged,  and  recorded,  in  the 
manner  therein  prescribed.  But,  in  the  case  before  us,  the 
appellee  passed  to  the  appellant  no  estate  or  interest  in  his 
land,  or  any  use  thereof.  He  simply  agreed  to  abandon  the 
use  of  the  water,  in  the  manner  in  which  it  had  been  accus- 
tomed to  flow  on  his  land.  And  the  moment  the  abandon- 
ment was  consummated  by  the  execution  of  the  license,  the 
right  of  the  appellee  to  the  use  of  the  water,  as  it  formerly 
flowed  in  its  natural  channel,  became  extinct;  it  was  no  longer 
appurtenant  to  his  land;  and  he,  thenceforth,  held  it  as  if  no 
such  privilege  or  appurtenance  had  ever  belonged  to  it.  And 
this  view  of  the  subject,  in  no  wise,  contravenes  the  promi- 
nent object  of  our  enrolment  laws,  the  protection  of  purcha- 
sers. When  a  purchaser  views  the  land  he  desires  to  acquire, 
he  sees  it  divested  of  its  water  right,  and  contracts  for  it  ac- 
cordingly: so  that  no  injustice  is  done  him. 

We  are  not  to  be  understood  in  what  we  have  said,  as  coun- 
tenancing the  idea,  that  a  written  grant,  unacknowledged  and 
unenrolled,  of  a  power  similar  to  that  conferred  by  the  license 
in  this  case,  but  which  power  had  not  been  executed,  would 
be  operative  and  effectual  to  bar  a  subsequent  bonafide  pur- 
chaser, for  a  valuable  consideration  without  notice,  claiming 
the  water  right  naturally  incident  to  the  lands  he  had  purchased. 
To  interpose  such  a  bar,  in  such  a  case,  we  think  the  same 
conformity  to  the  provisions  of  our  registry  laws  is  necessary, 
that  would  be  required  if  land  were  the  subject  of  the  convey- 
ance. 

The  doctrine,  insisted  on  in  the  argument  of  the  counsel  for 
the  appellant,  that  an  oral  contract,  of  no  validity  under  the 
statute  of  frauds,  would  obtain  such  validity,  and  would  ena- 
ble a  party  to  maintain  an  action  upon  it  at  law,  if  he  could 
prove  that  the  opposite  party  perpetrated,  or  designed  to  per- 


230  CASES  IN  THE  COURT  OK  APPEALS 


Mitchell,  vs.  Mitchell.— 1844. 


petrate,  a  fraud,  when  he  entered  into  the  contract.  A  repli- 
cation, charging  such  fraud  to  the  defendant,  in  an  action  at 
law,  instituted  on  such  a  contract,  would  be  no  answer  to  the 
defendant's  plea  of  the  statute  of  frauds.  If  a  party  on  whom 
such  a  fraud  has  been  committed,  has  relief  any  where,  it  must 
be  sought  in  a  court  of  equity;  at  law  it  cannot  be  obtained. 
Assenting  to  the  opinion  of  the  court,  on  the  first  bill  of 
exceptions,  but,  dissenting  from  its  refusal  to  admit,  in  evi- 
dence, the  testimony  offered  by  the  appellant  in  the  second  bill 
of  exceptions,  we  reverse  its  judgment. 

JUDGMENT  REVERSED  AND  PROCEDENDO  ORDERED. 

CHAMBERS,  J.,  dissented  in  part. 

I  concur  in  the  opinion  expressed  by  my  Brother  Dorsey,  so- 
far  as  that  opinion  relates  to  the  case,  now  for  the  judgment 
of  this  court.  To  so  much  of  it  as  relates  to  the  idea,  "that 
a  written  grant,  unacknowledged  and  unenrolled,  of  a  power 
similar  to  that  conferred  by  the  license,  in  this  case,  &c."  I 
beg  leave  to  be  considered  as  expressing,  neither  concurrence 
or  dissent.  That  question  is  not  involved  in  the  cause  now 
before  us,  has  not  been  at  all  argued  by  counsel,  certainly  has 
not  been  investigated  by  me;  and,  whatever  be  the  law  appli- 
cable to  it,  this  case  will,  in  no  respects,  be  affected  by  it. 

Considering  it  quite  sufficient  to  examine  and  decide  ques- 
tions which  are  brought  before  us,  I  am  unwilling  to  prejudge 
others;  not  because  of  any  supposed  difficulty  in  the  particu- 
lar case,  but  on  account  of  the  principle. 


SARAH  E.  MITCHELL,  vs.  ELIZABETH  A.  MITCHELL,  EXE- 
CUTRIX or  JAMES  D.  MITCHELL. — December,  1844. 

On  the  6th  August  1837,  J,  by  his  last  will,  devised  his  sister  8.  an  annuity, 
to  be  paid  by  his  executrix,  and  charged  the  same  on  the  whole  of  his  real 
estate.  After  a  devise  of  a  farm  to  his  wife,  for  her  life,  he  bequeathed  the 
same  "unto  the  eldest  male  heir  of  the  body  of  his  brother  H.,  and  the  heirs 
and  assigns  of  such  male  heir,  if  he  shall  live  to  attnin  the  age  of  twenty- 


OF  MARYLAND.  231 


Mitchell,  vs.  Mitchell.— 1844. 


ono  years ;"  and  for  want  of  such  male  heir,  then  the  same  estate  should 
descend  to  the  right  heirs  of  the  testator.  The  testator  died  in  1837 ;  left 
no  children,  but  a  widow,  (the  devisee  for  life,)  who  died  in  1841,  a  sister 
S.,  of  the  whole  blood,  and  his  brother  H.,  of  the  half  blood,  still  alive,  who 
has  a  son,  his  eldest  male  child,  born  in  1838.  HELD  :  that  upon  the  death 
of  the  tenant  for  life,  in  1841,  living  H.,  the  estate  descended  to  the  right 
heirs  of  the  testator,  his  sister  S.,  the  complainant  in  the  bill. 

Where  an  estate,  charged  with  the  payment  of  a  legacy,  descends  to  the  lega- 
tee, the  lien  becomes  extinct,  by  the  union  of  the  title,  and  the  charge,  in 
the  same  person. 

One  may  be  heir  apparent,  or  heir  presumptive,  but  not  very  heir,  living  the 
ancestor;  no  one  is  recognized  as  heir,  until  the  death  of  his  ancestor. 

One  cannot  take,  as  purchaser,  under  the  description  of  heir,  or  heir  male; 
unless,  when  the  estate  is  to  vest,  he  has,  by  the  death  of  his  ancestor,  be- 
come very  heir. 

This  is  the  general  rule,  subject  only  to  this  exception,  that  when  the  inten. 
tion  of  the  testator  can  be  made  clearly  to  appear  from  the  will,  that  he  did 
not  mean  the  words,  heir  or  heir  male,  to  be  used  in  their  technical  sense, 
then  the  popular  sense  shall  prevail. 

Prima  facie,  the  word  heir  must  be  taken  in  its  technical  sense,  as  a  word  of 
limitation. 

Every  contingent  remainder  must  vest  eo  instanti,  that  the  particular  estate 
determines. 

There  are  certain  principles  to  be  kept  in  view,  when  a  court  is  called  upon 
to  construe  a  will :  one  is,  and  the  most  material,  that  the  leaning  should 
be  towards  technical  words  in  their  technical  sense ;  and  only  suffering 
themselves  to  adopt  another  meaning,  when  there  can  be  no  reasonable 
doubt,  from  the  context,  that  in  such  sense  the  testator  used  them ;  and  that 
he  could  not  have  used  them  in  their  known  and  legal  sense. 

APPEAL  from  the  Court  of  Chancery. 

The  bill,  in  this  cause,  was  filed  on  the  16th  February  1838, 
by  the  appellant,  praying  subp03na  against  Elizabeth  Mitchell, 
claiming  a  discovery  and  account  of  the  rents,  and  profits,  and 
proceeds,  of  certain  real  and  personal  property,  devised  by 
Francis  J.  Mitchell,  father  of  the  complainant,  and  James  D. 
Mitchell,  testator  of  said  Elizabeth  A.,  to  James  I).  Mitchell, 
in  trust  for  Sarah  E.  Mitchell,  and  for  an  annuity  under  the 
will  of  James  D.  Mitchell.  An  amendment,  made  Henry  S. 
Mitchell  and  his  infant  son,  Joseph  H.  Mitchell,  parties  defen- 
dants. 


232  CASES  IN  THE  COURT  OF  APPEALS 

Mitchell,  vs.  Mitchell.— 1844. 

The  questions  of  law  decided,  arise  under  the  following 
clauses  of  James  D.  Mitchell's  will,  dated  6th  August  1837, 
viz: 

"  I  give  and  bequeath  to  my  dear  sister,  Sarah  Elizabeth 
Mitchell^  an  annuity  of  $500,  to  be  payable  and  paid  to  her 
by  my  executrix,  hereinafter  named,  in  even  and  equal  semi- 
annual instalments,  for  and  during  the  whole  term  of  the  natu- 
ral life  of  my  said  sister,  accounting  from  the  time  of  my 
decease  \  and  I  charge  the  whole  of  my  real  estate  with  the 
payment  of  the  said  annuity,  in  manner  aforesaid. 

I  give  and  devise  to  my  said  wife,  Elizabeth  Jinn  Mitchell, 
my  farm  and  real  estate,  situated  in  Charles  county,  called 
"Myrtle  Grove,"  containing  eighteen  hundred  acres,  or  therea- 
bouts, be  the  same  more  or  less.  And  likewise,  my  farm  in 
Kent  county,  &c.;  and  all  the  slaves  at  "Myrtle  Grove;"  and 
the  live  stock,  farming  and  plantation  utensils,  and  implements 
of  husbandry,  on  said  farm,  respectively  being;  and  also  my  lot 
of  land,  situated,  &c.;  and  generally,  all  the  rest,  residue,  and 
remainder  of  my  estate,  real,  personal,  and  mixed,  not  herein- 
before disposed  of,  wherever  situate  or  being,  inclusive  of  my 
library,  books  of  accounts,  &c.  To  hold  said  farms,  lot  of 
land,  and  real  estate,  and  all  said  slaves,  &c.,  unto  my  said 
wife,  for  and  during  the  term  of  her  natural  life,  without  im- 
peachment of  waste. 

It  is,  nevertheless,  my  will  and  desire,  in  case  the  debts  ow- 
ing to  me  and  which  may  be  collected,  should  fall  short  of  an 
amount  sufficient  to  discharge  the  just  claims  against  me, 
that  my  said  wife  sell  and  dispose  of,  in  her  best  discretion, 
so  much  of  my  personal  property,  other  than  that  given  and 
bequeathed  to  her  in  perpetuity,  as  may  be  necessary  to  make 
up  that  deficiency ;  but,  if  the  moneys  on  hand  at  the  time  of 
my  death,  and  those  owing  to  me,  and  which  may  be  collected, 
should  exceed  the  amount  of  the  just  claims  against  me,  then 
I  give  the  surplus  or  difference  to  my  said  wife,  to  be  applied 
to  her  own  use.  Moreover,  I  authorize  and  empower  my  said 
wife,  if  she  shall  think  proper  so  to  do,  to  sell  such  of  my 
slaves  as  may  not  be  necessary,  for  cultivating  and  carrying  on 


OF  MARYLAND.  233 


Mitchell  vs.  Mitchell,— 1844. 


the  "Myrtle  Grove"  farm,  and  domestic  purposes  thereon,  and 
in  the  event  of  such  sale,  to  apply  the  proceeds  to  her  own 
use,  or  to  dispose  thereof,  as  to  her  may  seem  fit. 

After  the  decease  of  my  said  wife,  I  give  and  devise  my  afore- 
said farm,  called  "Myrtle  Grove"  and  the  slaves  that  may 
remain  undisposed  of;  inclusive  of  the  future  issue  and  increase 
of  the  females;  and  also,  the  farming  and  plantation  utensils 
and  implements  of  husbandry,  and  live  stock,  that  may  be 
then  remaining  on  that  farm,  unto  the  eldest  male  heir  of  the 
body  of  my  brother,  Henry  S.  Mitchell,  and  the  heirs  and  as- 
signs of  such  male  heir  forever,  if  he  shall  live  to  attain  the  age 
of  twenty-one  years,  or  leave  lawful  issue;  and  in  case  of  the 
decease  of  such  eldest  male  heir  of  the  body  of  my  said  bro- 
ther, in  bis  minority,  and  without  leaving  lawful  issue,  then  to 
the  next  eldest  male  heir,  of  the  body  of  my  said  brother,  and 
the  heirs  and  assigns  of  such  next  eldest  forever,  if  he  shall 
live  to  attain  the  aforesaid  age  of  twenty-one  years,  or  leave 
lawful  issue  ;  and  so  on  in  succession,  to  the  third,  fourth,  and 
other  male  heir,  his  heirs  and  assigns,  if  any  such  male  heir 
there  shall  be,  that  may  live  to  attain  the  aforesaid  age  of  twen- 
ty-one years:  and  for  want  of  such  male  heir  of  ray  said  bro- 
ther, then  the  same  estate  shall  descend  to,  and  devolve  upon 
the  right  heirs  of  me,  the  said  James  Davidson  Mitchell,  in  fee 
simple. 

And  as  to  my  aforesaid  farm,  called  "Hunting  Fields,"  and 
the  live  stock,  farming  utensils,  and  implements  of  husbandry 
thereon;  and  also,  my  aforesaid  lot  of  land,  in  the  city  of  Balti- 
more, I  give  and  devise  the  same,  after  the  decease  of  my 
wife,  to  such  one  or  more  of  the  children  of  my  aforesaid  bro- 
ther, Henry  S.  Mitchell,  as  my  dear  wife,  by  her  last  will  and 
testament,  or  by  any  instrument  of  writing,  in  the  nature  of, 
or  purporting  to  be,  a  last  will  and  testament,  executed  in  the 
presence  of,  and  attested  by  two  or  more  credible  witnesses, 
shall  name  and  appoint ;  to  have  and  to  be  entitled  thereto,  and 
his,  her,  or  their  heirs  and  assigns  forever ;  and  in  default  of 
such  nomination  and  appointment,  then  to  all  the  children  of 
my  said  brother,  whether  already  or  to  be  hereafter  born, 
30  2v. 


234  CASES  IN  THE  COURT  OF  APPEALS 

Mitchell,  vs.  Mitchell.— 1844. 

equally,  their  heirs  and  assigns  forever.  But  if  there  be  no 
such  child,  or  descendant  of  a  child,  who  shall  live  to  attain 
the  age  of  twenty-one  years,  then  the  said  last  described  estate 
and  property,  shall  descend  to,  and  devolve  upon  the  right 
heirs  of  me,  the  said  James  Davidson  Mitchell,  to  be  held  by 
them,  their  heirs  and  assigns,  forever.  I  authorize  the  leasing, 
for  a  long  term,  renewable  for  ever,  any  part  or  parts,  or  the 
whole  of  my  aforesaid  lot  of  land,  in  the  city  of  Baltimore, 
for  the  best  rents  that  can,  at  the  time  of  making  the  lease  or 
leases  thereof,  be  obtained  for  the  same  ;  siiid  lease  or  leases 
to  be  executed  by  my  wife,  at  any  time  or  times  during  her 
life;  she  may  fix  the  rents,  and  reserve  the  same  to  her  own 
use,  for  her  life ;  and  after  her  decease,  to  the  use  of  the  per- 
son or  persons,  who  may,  under  this,  my  will,  be  entitled 
thereto.  I  wish  it  to  be  understood,  that  the  person  or  per- 
sons, who  may,  according  to  the  terms  of  this,  my  will,  be 
entitled  to  the  slaves,  live  stock,  and  moveable  chattels  afore- 
said, after  the  decease  of  my  wife,  is,  or  are  to  receive  and 
take  the  same,  in  the  condition  in  which  the  property  may  be 
found  at  the  time  of  my  wife's  decease;  it  being  my  will  and 
intention,  that  my  said  wife,  if  she  shall  deem  it  necessary, 
may  dispose  of  by  sale,  in  her  life  time,  any  part  or  parts  of 
the  moveable  chattels  aforesaid,  except  the  slaves  so  as  afore- 
said, necessary  for  the  "Myrtle  Grove"  farm,  and  the  proceeds 
apply  towards  her  comfortable  maintenance  and  support." 

The  facts  connected  with  the  will  of  J.  D.  M.t  are  stated 
in  the  opinion  of  this  court. 

After  the  filing  of  the  bill,  answers  and  proofs,  the  chan- 
cellor, (BLAND,)  at  March  term  1843,  decreed,  that  the  bill 
should  be  dismissed,  upon  the  grounds  imputed  to  him  in  the 
opinion  of  the  appellate  court,  and  from  which  the  com- 
plainant appealed. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  SPENCE,  J. 

By  ROBERT  J.  BRENT  and  REVERDY  JOHNSON,  for  the  ap- 
pellants, who  cited. 


OF  MARYLAND.  235 


Mitchell  vs.  Mitchell.— 1844. 


1  Sawn.  Uses,  363,  Willis  on  Trus.  124.  3  Dessau.  C. 
R.  346,  388.  Ward  on  Leg.  190.  1  Ves.  Jr.  557.  Stall- 
man  on  Elect.  231.  3  Bro.  Parl.  Cases,  155.  7  GUI  &  John. 
217.  1  Sumner,  1.  1  Ves.  Jr.  97.  10  G.  &  J.  174.  7  G. 
&  J.  248.  Fearne  on  Con.  Rem.  210.  4  jf<m*.  Cow.  253. 
2  Day,  28.  6  Crime,  Dig*.  38.  9  Wheat.  325.  1  Mason, 
224,  6  #arr.  #  John.  374.  1  Dyer,  99.  1  P.  WU  232. 
22  Law  Lib.  425.  21  £aw>  Lib.  316.  2  Dessau.  94.  3 
Wood  Lee.,  202.  1  W.  Black,  1010. 

WILLIAM  SCHLEY,  for  appellee,  cited. 
24  Law    Lib.  52.     23  Law  Lib.  25.     Llewin  on  Trusts, 
102,  629,  630,  note  639.     TFard,  on  Leg.  143,  192.     3  Bro. 
C.  R.   88.     1    Ves.  J.    176.     3  ^/c.  616.     1  Eden,  489. 
657,     1  G.  Sf  J.  220.     1   Pefers.  S.   C.  236.     1 
359,  note  381.     1    Fon&.    153.     15    Wendell,   290. 
9  Clark  &  Fin.  583,  606. 

ARCHER,  J.,  delivered  the  opinion  of  this  court. 

The  bill,  as  amended,  seeks  to  enforce  payment  of  a  legacy 
left  the  complainant,  by  the  last  will  and  testament  of  Francis 
J.  Mitchell,  by  the  obtainment  of  a  decree  for  the  sale  of 
Myrtle  Grove,  upon  the  ground,  that  the  said  legacy  was,  by 
the  said  last  will  and  testament  of  Francis  J.  Mitchell,  charged 
upon  the  said  estate. 

The  bill,  also,  seeks  an  account  of  all  the  property  left  to 
James  D.  Mitchell,  by  the  will  of  Francis  J.  Mitchell,  in  trust 
for  the  complainant. 

The  chancellor  dismissed  the  complainant's  bill,  first,  be- 
cause the  estate  charged  with  the  alleged  legacy,  had  descended 
to  the  complainant ;  and  secondly,  because  it  did  not  suffi- 
ciently appear,  that  the  personal  estate  bequeathed  to  James  D. 
Mitchell,  in  trust,  for  the  complainant,  ever  was  managed  by, 
and  applied  to  his  own  use,  by  the  said  James  D.  Mitchell, 
without  the  consent  of  the  complainant. 

The  only  estate  alleged  in  the  argument  of  complainant,  to 
be  charged  with  the  legacy,  by  the  will  of  Francis  J.  Mitchell, 


236  CASES  IN  THE  COURT  OF  APPEALS 

Mitchell  vs.  Mitchell.— 1844. 

is  the  estate  called  Myrtle  Grove.  If  that  estate  has,  in  fact, 
descended  to  the  complainant,  the  charge,  if  one  in  point  of 
law  exists,  has  become  extinct  by  the  union  of  the  title  and 
the  lien  in  the  complainant. 

We  will,  therefore,  first  proceed  to  enquire  whether  the  es- 
tate called  Myrtle  Grove,  has  descended  to  the  complainant. 

This  question  grows  out  of  the  will  of  James  D.  Mitchell, 
bearing  date  on  the  6th  day  of  August  1837.  James  D.  Mit- 
chell died  in  the  month  of  August  1837,  and  probate  was  had 
of  his  will,  on  the  23rd  of  August  1837.  James  D.  Mitchell 
left  no  children,  but  a  widow,  Elizabeth  Ji.  Mitchell  since  de- 
ceased, and  a  brother,  Henry  S.  Mitchell ;  a  brother  by  the 
same  father,  but  a  different  mother;  and  a  sister,  the  complain- 
ant, of  the  whole  blood.  Henry  S,  Mitchell,  has  a  son  now 
living,  named  Joseph  H.  Mitchell,  who  is  his  oldest  male  child, 
and  was  born  in  March  1838.  Henry  S.  Mitchell  has  also 
another  son,  an  infant,  now  living.  Elizabeth  Ann  Mitchell, 
the  widow  of  James  D.  Mitchell,  died  in  the  month  of  August 
1841. 

The  life  estate  devised  by  the  will  to  Elizabeth  Jinn  Mitchell, 
having  terminated,  the  half  brother  of  the  complainant  still 
living,  the  question  is,  whether  the  remainder  to  the  eldest  male 
heir  of  Henry,  is  vested  in  his  oldest  male  child  ?  or  whether, 
in  consequence  of  the  life  estates  terminating  before  the  death 
of  Henry,  the  remainder  to  his  oldest  male  heir  is  not  void  ? 
in  which  event  the  estate  would  decend  to  his  heirs  :  The  com- 
plainant is  the  heir  at  law  of  the  testator. 

The  terms  used  in  the  will,  as  descriptive  of  the  remainder, 
are,  "the  first  heir  male  of  his  brother  Henry,  and  the  heirs 
and  assigns  of  such  male  heir  forever,  if  he  shall  live  to  attain 
the  age  of  21,  or  leave  lawful  issue,  &c."  The  cases  which 
have  been  cited  establish  the  law  to  be,  that  no  one  is  recog- 
nized as  heir  until  the  death  of  the  ancestor.  In  the  language 
of  Mr.  Justice  Taunton,  a  man  may  be  heir  apparent,  or  heir 
presumptive,  but  he  is  not  very  heir  living  the  ancestor.  One 
cannot,  therefore,  take  as  a  purchaser  under  the  description  of 
heir,  or  heir  male,  unless,  where  the  estate  is  to  vest,  he  has,  by 


OF  MARYLAND.  237 


Mitchell  vs.  Mitchell.— 1844. 


the  death  of  his  ancestor,  become  very  heir.  This  appears  to 
be  a  general  rule,  subject  only  to  this  exception,  that  when  the 
intention  of  the  testator  can  be  made  clearly  to  appear  from 
the  will,  that  be  did  not  mean  the  word  heir,  or  heir  male,  to 
be  used  in  its  technical  sense,  but  in  its  popular  sense,  then  the 
popular  sense  shall  prevail.  The  intention  should  be  by  de- 
monstration plain  ;  and  he  who  urges  the  exception,  must 
demonstrate  the  intention,  for  prima  facie,  the  words  must  be 
taken  in  their  technical  sense,  as  words  of  limitation.  These 
principles  will  be  found  to  be  sustained  by  Hob.  33,  1  Vent. 
334,  2  Vent.  311,  1  P,  Wil.  229,  2  Wil.  Black.  1010,  2  Leon. 
70,  4  Mod.  153.  And  it  is  rightly  said,  by  one  of  the  judges, 
in  delivering  the  opinion  of  the  court,  in  Winter  vs.  Perratt, 
9  Clarke  fy  Finnely  Jip.  Ca.  669,  "that  what  amounts  to  a 
plain  demonstration  of  intention,  so  as  to  withdraw  the  term 
heir  from  its  technical  interpretation,  must,  in  each  case  depend 
on  the  language  used,  and  the  circumstances  under  which  it  is 
used ;  and  is  not  a  question  to  be  determined  by  reference  to 
reported  cases ;  but  by  a  careful  consideration  of  that  lan- 
guage, and  those  circumstances,  in  the  particular  case  under 
discussion." 

We  perceive  no  room  to  doubt,  that  the  term  "heir"  was 
designed  to  be  used  by  the  testator  in  its  technical  sense ; 
wherever  in  the  will  the  word  heir  is  used,  it  is  used  in  its 
technical  sense,  as  where  he  says  the  first  "heir  male  of  Henry" 
and  "his  heirs  and  assigns."  In  the  latter  instance,  the  word 
heirs  is  used  by  the  testator  in  its  technical  sense;  and  again, 
on  the  failure  of  heirs  male  of  Henry,  who  were  to  take  in 
succession,  then  he  devises  over,  to  his  right  heirs.  Can  we, 
by  any  just  construction,  impute  to  the  testator  a  different 
meaning  to  the  same  words,  when  used  in  the  same  will,  and 
in  the  same  sentence  of  the  will,  without  anything  to  indicate 
a  difference?  But  again,  when  the  testator  devises  Hunting 
Field  to  his  wife,  and  gives  her  a  power  of  appointment,  and 
in  case  of  her  failure  to  exercise  that  power  of  appointment, 
devises  the  estate  to  the  children  of  Henry;  is  it  not  still  more 
apparent,  that  he  was  aware  of  the  difference  in  the  terms,  heir 
of  Henry,  and  child  of  Henry? 


238  CASES  IN  THE  COURT  OF  APPEALS 

Mitchell  vs.  Mitchell.. — 1844. 

The  annuity  to  the  heirs  at  law,  which  has  been  bequeathed, 
with  a  charge  on  his  lands,  by  the  testator,  and  his  presumed 
knowledge,  that  his  sister,  his  heir  at  law,  had  designs  to  con- 
nect herself  with  a  monastery,  we  do  not  think  furnish  consi- 
derations showing  a  different  intent  from  the  technical  sense. 
The  charge  is  on  all  his  lands,  as  well  Hunting  Field  as  Myrtle 
Grove;  and  yet,  in  such  case,  on  the  failure  of  the  contingen- 
cy, the  devise  over  is  to  the  heir  at  law. 

The  case  of  9  Cla.  fy  Fin.,  Jlp.  Ca.  606,  has  been  cited  as 
decisive  of  this.  It  is  true,  in  that  case,  the  terms  used  by  the 
testator  were  considered  as  indicating  an  intention,  in  the  use 
of  words,  different  from  their  legal  signification;  but  the  judges 
who  so  decide,  do  so  on  the  ground,  that  the  term,  heir  male 
of  the  branch  of  R.  C's  family,  in  connection  with  the  cir- 
cumstances of  the  case,  and  the  fact  that  /?.  C"s  family  was 
known  to  the  testator,  gave  to  the  word  heir  male,  a  different 
signification  from  its  technical  meaning.  Though  even  in  this 
case,  different  as  it  is  from  the  one  before  the  court,  much  di- 
versity of  opinion  prevailed  among  the  judges ;  and  it  strikes 
us,  from  a  review  of  their  opinions,  there  would  have  been  but 
little  difference  of  opinion^  had  the  mere  technical  terms  been 
used,  without  the  qualifications  affixed  to  them. 

In  conclusion,  on  this  branch  of  the  case,  we  beg  leave  to 
refer  to  the  following  observations  of  Lord  Brougham,  in  de- 
livering his  opinion  in  the  case  above  adverted  to,  "that  there 
are  certain  principles  fit  to  be  kept  in  view,  when  we  are  called 
upon  to  construe  a  will,  which  raises  such  doubts  as  the  pre- 
sent has  raised.  One  is,  and  the  most  material,  that  the  leaning 
should  be  towards  taking  technical  words  in  their  technical 
sense;  and  only  suffering  ourselves  to  adopt  another  meaning, 
when  there  can  be  no  reasonable  doubt  from  the  context,  that, 
in  such  sense,  the  testator  used  them ;  and  that,  he  could  not 
have  used  them  in  their  known  or  legal  sense.  This  rule  is 
founded  on  the  consideration  of  the  risk  we  run,  in  allowing 
a  scope  for  conjecture  and  fancy,  of  making  a  will  for  him, 
which  neither  he  himself  made,  nor  the  law  recognized  ;  and 
if  it  be  said  that,  by  adhering  to  the  technical  sense,  we  shall 


OF  MARYLAND.  239 


Mitchell,  vs.  Mitchell.— 1844. 


sometimes  run  the  risk  of  giving  a  construction  which  the  tes- 
tator did  not  intend,  the  answer  is,  that  this  risk  is  common  to 
both  courses,  and  we  avoid  that  other,  and  perhaps  greater 
evil,  of  introducing  uncertainty  into  the  foundation  upon  which 
titles  rest :"  In  these  views,  we  fully  concur. 

If  the  word,  heir  male,  is  to  be  construed  in  its  technical 
sense,  then  the  limitation  over,  after  the  death  of  the  tenant 
for  life,  is  gone ;  as  there  could  be  no  heir  of  Henry  Mitchell, 
during  his  life.  The  rule  being,  that  every  contingent  remain- 
der must  vest,  eo  instanti,  that  the  particular  estate  determines. 

The  remainder  failing  to  take  effect,  the  estate  descended 
on  the  death  of  the  tenant  for  life  on  the  complainant,  who  was 
heir  at  law,  and  her  lien  was  sunk  in  her  title  to  the  land. 

The  principal  cases  which  determine,  that  if  there  be  suffi- 
cient in  the  will  to  show  that  the  word  heir,  is  used  in  such  a 
way  that  the  testator  meant  the  word  "heir,"  to  mean,  descen- 
dant, or  heir  apparent,  it  shall  be  so  construed,  are,  1  Ven. 
334,  2  Vent.  311,  1  Pier.  Wil.  229,  2  W.  Black.  1010.  The 
first  of  these  cases  is  Burchett  vs.  Durdant.  There,  a  devise 
to  the  heirs  of  the  body  of  Ji.,  now  living,  was  held  to  be  a 
vested  remainder,  and  it  was  so  determined,  because  the  words 
"now  living,"  were  referred,  not  to  Ji.,  but  to  the  heirs  of  the 
body;  and  it  was  apparent,  from  other  parts  of  the  will,  that 
the  testator  knew  that  Ji.  was  in  esse  also.  It  was,  on  this 
account,  adjudged,  that  the  heirs  of  ^3.,  took  the  remainder  to 
the  heirs  of  Ji.,  during  his  life.  As  there  was  an  heir  appar- 
ent of  the  body  of  Ji.,  then  living,  it  was  considered  as  a  de- 
signatio  persona. 

The  case  of  Darbison  vs.  Beaumont,  1  P.  Wil.  229,  was  a 
devise  of  lands  to  A.  for  life,  remainder  to  his  first  son, 
in  tail  male,  &c.,  and  in  default  of  such  issue,  remainder 
to  the  heirs  male  of  the  body  of  the  testator's  aunt,  Eliza- 
beth Long,  lawfully  begotten ;  and  for  default  of  such  issue, 
remainder  of  all  his  lands,  to  his,  the  testator's  right  heirs.  He 
also  gave  a  legacy  to  Elizabeth  Long,  and  legacy  to  her  three 
sons,  JI.,  B.  and  C.,  of  .£500.  The  question  was,  whether 
ihe  heir  at  law  of  the  testator,  or  Ji.,  the  eldest  son  of  E.  L., 


240  CASES  IN  THE  COURT  OF  APPEALS 

Mitchell,  vs.  Mitchell.— 1844. 

was  entitled  to  the  testator's  real  estate.  Three  reasons  are 
assigned  for  the  judgment,  that  the  heir  at  law  did  not  take 
the  estate.  1st.  That  the  testator  noticed,  that  the  sons  of  E. 
Long  were  living ;  and  that  she,  E.  L.,  was  also  living.  2nd. 
That  the  limitation  of  the  right  heirs  of  the  testator  was  ex- 
pressly, on  failure  of  issue  male  of  E.  L.',  so  that  the  intent  was 
plain,  that  the  apparent  heir  of  the  body  of  E.  L.,  should  take 
before  his  heir  general  ;  and  3rd.  That  it  was  the  same  as 
Burchett  vs.  Durdant,  because,  the  words,  then  begotten,  con- 
nected with  the  word,  heirs  male,  were  nearly  similar.  The 
words,  then  begotten,  in  this,  were  tantamount  to  "then 
living ,"  in  the  former  case. 

It  is  very  certain,  that  the  case  before  us  does  not  come 
within  the  reason  of  either  of  the  above  cases.  There  is  no 
devise  to  an  heir  male  of  H.  W.,  then  living,  as  in  Burchett 
vs.  Durdant ;  for  here  at  the  death  of  the  testator,  H.  W.  had 
no  issue  born.  The  will,  here,  does  not  leave  over  the  estate 
to  the  heirs  at  law,  upon  the  failure  of  issue,  as  in  the  case  of 
Darbison  vs.  Beaumont ;  but  the  expression  is,  on  failure  of 
such  heir  male,  to  the  the  heirs  at  law;  nor  are  the  words  heirs 
of  the  body  of  H.  M.  begotten,  found  in  this  will;  and  if  they 
had  been,  these  words  in  the  case  before  us,  could  not  be  un- 
derstood to  be  tantamount  to  heirs  then  living,  because,  H.  M. 
had  no  children  then  living.  The  case  in  2  Will.  Black.  1010, 
has  been  supposed  to  go  further  than  either  of  the  cases  above 
adverted  to.  Here,  the  devise  was  to  his  son,  Richard  Brook- 
ing, and  the  heirs  of  his  daughter,  Margaret,  jointly  and 
equally,  and  for  want  of  heirs  male  of  Richard  Brooking,  at 
his  decease,  then  to  the  heirs  and  assigns  of  Margaret,  lawfully 
begotten  of  her  body.  The  testator  knew,  that  Margaret  was 
living,  and  had  at  his  death  a  son.  In  Darbison  vs.  Beaumont, 
the  words,  heirs  male,  of  the  body  of  the  testator's  aunt, 
Elizabeth  Long,  lawfully  begotten,  were  considered  tantamount 
to,  heirs  of  the  body  then  living,  and  as  being  the  same  in  prin- 
ciple with  the  case  of  Burchett  vs.  Durdant.  The  case,  there- 
fore, of  2  W.  Black.  1010,  may  be  governed  by  one  of  the 
reasons,  assigned  for  the  judgment  in  Darbison  vs.  Beaumont, 


OF  MARYLAND.  241 


Compton  vs.  Compton. — 1844. 


We  do  not  consider  the  case  before  us,  as  one,  in  which  the 
testator  has  given  plain  indications  of  an  intention,  that  the 
technical  words  he  has  used  should  be  taken  in  their  popular 
sense,  and  to  mean  descendants;  and  do  not,  therefore  believe* 
that  the  cases  above  adverted  to,  can  govern  and  control  our 
construction  of  the  will,  now  under  consideration. 

The  above  views  render  it  unnecessary  for  us  to  enquire  into 
the  various  questions,  which  in  relation  to  this  lien,  were  dis- 
cussed, as  growing  out  of  the  will  of  F,  J.  Mitchell. 

In  relation  to  the  right  of  the  complainant  to  an  account,  in 
reference  to  the  property  devised  in  trust  to  James  D.  Mitchell, 
for  the  use  of  the  complainant  under  the  will  of  Francis  J. 
Mitchell,  we  concur  with  the  chancellor  in  his  views,  as  ex- 
pressed in  his  decree  in  this  case,  and  affirm  his  decree. 

DECREE  AFFIRMED. 


BARNES  COMPTON,  vs.  WILSON  COMPTON. — December,  1844. 

It  is  the  duty  of  the  Orphans  court  in  appointing  a  guardian,  to  consult  the 

interest,  rather  than  the  wishes  of  an  infant. 
An  appeal  will  not  lie  from  an  order  of  the  Orphans  court,  appointing  a 

guardian. 

APPEAL  from  the  Orphans  Court  of  Charles  County. 

On  the  5th  March  1844,  the  appellant,  a  minor,  appeared 
in  the  Orphans  court  and  prayed  to  have  a  guardian  appointed, 
and  asked  to  have  Richard  Barnes,  esq>  one  of  the  justices 
of  the  said  court,  to  be  appointed,  who  retired  from  the  bench. 
The  court  postponed  the  appointment  until  the  3rd  Tuesday  in 
March,  when,  on  the  19th  of  that  month,  the  appellee  filed  a 
petition,  alleging  the  condition  of  the  appellant's  property,  the 
necessity  of  a  guardian,  and  institution  of  legal  proceedings  to 
protect  the  minor's  property  and  vindicate  his  rights.  The  pe- 
titioner alleged,  that  he  was  the  nearest  male  relation  of  the 
minor,  and  ought  to  be  appointed.  The  appellant  answered 
31  v.2 


242  CASES  IN  THE  COURT  OF  APPEALS 

Compton  vs.  Compton. — 1844. 

this  petition,  and  reiterated  his  wish  to  have  his  relation, 
Richard  Barnes,  appointed.  On  the  23rd  March,  the  court 
decreed  that  Wilson  Complon  be  appointed  guardian,  on  giving 
bond ;  from  which  decree  Barnes  Compton  prayed  an  appeal, 
by  his  next  friend,  Richard  Barnes,  to  this  court. 

The  cause  was  submitted  on  notes  of  counsel,  to  ARCHER, 
C.  J.,  DORSEY,  CHAMBERS,  SPENCE  and  MAGRUDER,  J. 

By  T.  F.  BOWIE  for  the  appellant : 

The  appellant  contends  that  he  has  the  right  to  select  his 
own  guardian,  and  that  his  selection  is  to  be  admitted  by  the 
Orphans  court,  unless  good  cause  be  shewn  that  he  has  made 
an  improper  or  injudicious  selection.  In  this  case,  it  is  not 
pretended  that  Richard  Barnes  is  not,  in  all  respects,  a  fit  and 
proper  person  to  be  guardian  to  the  njinor.  No  objection, 
whatever,  was  urged  against  his  appointment,  on  the  ground 
of  unfitness,  on  the  contrary,  if  the  statements  made  in  the 
minor's  petition  to  the  Orphans  court  are  to  be  taken  as  true, 
and  they  are  not  at  all  controverted,  he  was,  and  is,  of  all  per- 
sons, the  most  fitting. 

The  appellee  insists,  in  his  petition,  that  being  the  nearest 
male  relation  to  the  minor,  he  is  to  be  preferred  as  his  guar- 
dian, and  the  court  below,  in  granting  his  petition  in  the  man- 
ner they  do,  adopt  his  views  of  the  law,  and  in  effect  decide, 
that  he  is  to  be  preferred,  and  by  reason  of  such  preference, 
entitled  to  the  guardianship.  These  views  of  the  law  are 
deemed  to  be  altogether  erroneous,  and  an  examination  of  the 
authorities,  both  in  England  and  in  this  country,  will  prove 
them  to  be  so. 

It  has  been  supposed,  that  the  time  at  which  a  minor  has 
the  right  to  choose  his  guardian  is,  at  the  age  of  fourteen,  and 
not  sooner;  but  this  will  be  found  to  be  the  case  only  with 
reference  to  those  kinds  of  guardianships  in  England,  where,  by 
the  law  of  England,  the  right  of  guardianship  belongs,  as  a 
matter  of  right,  to  certain  descriptions  of  persons,  until  that 
age  is  attained  by  the  minor ;  as  in  the  cases  of  guardianship 


OK  MARYLAND.  243 


Compton  vs.  Compton. — 1844. 


in  chivalry  ;  in  socage ;  by  the  custom  of  gavel  kind  ;  by  the 
custom  of  the  manor,  and  the  like.  In  all  these  cases,  the  right 
of  selection  does  not  exist  before  fourteen,  simply  because,  by 
law,  the  right  of  guardianship  devolves  by  operation  of  law, 
a?  a  matter  of  right,  and  to  allow  the  minor  the  right  of  choice 
in  such  cases  before  fourteen,  would  conflict  with  the  rights  of 
other  persons  secured  to  them  by  law,  and  the  immemorial 
usages  of  the  realm.  In  the  case  of  the  guardianship  in 
socage,  which  exists  in  all  cases  where  minors  have  lands 
held  by  the  socage  tenure,  the  next  male  heir  who  cannot  by 
possibility  inherit  the  estate,  is  entitled  to  the  guardianship 
until  the  minor  attains  the  age  of  fourteen,  at  which  time  the 
guardianship  ceases,  and  the  right  of  selection  begins.  In 
such  a  case  the  guardian  derives  his  right,  not  from  appoint- 
ment by  any  of  the  courts  of  England,  but  by  the  usages  of 
the  common  law,  and  is  entitled  to  enter  into  and  take  pos- 
session of  the  minor's  lands  and  estate,  and  to  keep  the  same 
until  he  attains  to  the  age  of  fourteen.  So  also,  with  reference 
to  the  guardianship  in  chivalry,  which  exists  only  where  minors 
are  entitled  to  lands  held  by  "military  or  knight  service."  In 
this  case,  the  lord  who  originally  granted  the  lands  and  of 
whom  they  are  so  held,  is  entitled  to  the  guardianship  of  the 
minor,  and  to  possession  of  all  such  land,  until  the  minor  at- 
tains to  an  age  at  which  he  is  able  to  perform  "military  ser- 
vices." In  this  case  also,  the  right  of  choice  in  the  minor 
before  that  age,  does  not  exist,  because  it  would  conflict  with 
the  feudal  rights  of  the  lord,  which  are  secured  to  him  by  the 
immemorial  customs  of  the  common  law ;  and  so  in  reference 
lo  all  the  other  descriptions  of  guardianships  before  spoken  of. 
Wherever  the  estates  of  the  minor  are  holden  by  any  of  the 
feudal  tenures  or  customs  of  the  realm,  the  right  of  selection 
in  the  minor  does  not  exist  before  the  age  of  fourteen  years  ; 
but  it  is  confidently  believed,  that  in  all  other  cases,  where  the 
minor's  estates  are  not  held  by  any  of  the  ancient  feudal  tenures, 
the  right  of  selecting  his  own  guardian  exists  at  any  age,  that 
he  is  capable  of  making  a  prudent  selection.  See  Coke  on  Lit- 
tleton, 786.  14  Law  Library,  69.  Coke  on  Littleton,  by 
Thomas,  183,  note  6.  1  Chitty  Blac.  Com.  462,  note  9. 


244  CASES  IN  THE  COURT  OF  APPEALS 

Compton  vs.  Compton. — 1844. 

In  the  ecclesiastical  courts  of  England,  a  minor  above  seven 
years  of  age  has  the  right  to  choose  his  guardian,  and  he  is 
admitted  in  that  character  by  the  court,  who  hold  themselves 
bound  by  the  minor's  nomination,  unless  an  improper  choice  is 
made,  and  in  that  case,  and  that  case  only,  they  will  control  it. 
40  Law  Library,  68,  69.  McPherson  on  Infants,  74,  75. 
This  is  the  undoubted  law  of  England. 

The  feudal  tenures  were  abolished  in  this  country  by  the 
Revolution,  and  there  are  now  in  this  State  no  such  tenures 
as  draw  with  them  any  of  the  kinds  of  guardianships  above 
spoken  of,  which  devolve,  by  operation  of  law,  on  those  who 
are  entitled.  But  all  guardianships  in  this  State  are  created  by 
appointment,  and  such  as  are  in  England,  now  granted  by  the 
ecclesiastical  and  chancery  courts,  in  which  the  right  of  selec- 
tion has  uniformly  been  acknowledged  to  exist  in  the  minor, 
if  above  seven,  and  capable  of  making  a  proper  choice. 

This  was  undoubtedly  the  case  in  this  State,  and  the  right 
of  selection  seems  to  have  been  engrafted  upon  our  laws  by 
the  legislature  of  the  State.  By  the  act  of  1715,  chap.  39, 
sec.  7,  Bacon's  Laws  of  Md>,  the  right  of  choice  is  given  to 
the  minor  in  express  words,  "if  capable  of  choosing  his  guar- 
dian," and  is  denied  to  him  only  in  the  event  of  his  not  being 
of  sufficient  age  to  make  a  proper  choice.  No  particular  age  is 
mentioned  by  the  act  alluded  to.  The  minor's  capacity  to  make 
a  prudent  and  judicious  choice,  seems  only  to  have  been  con- 
sidered as  sufficient  to  give  him  the  right.  And  it  is  submit- 
ted, that  this  important  right  is  no  where  impaired  or  taken 
away  by  any  subsequent  legislation  of  the  State.  It  is  clearly 
not  taken  away  by  any  express  words  of  repeal  in  any  subse- 
quent act  of  Assembly.  The  act  of  1798,  chap.  101,  which 
it  is  supposed,  repeals  the  act  of  1715,  by  sec.  2,  repeals  only 
so  much  of  all  former  acts  "as  are  inconsistent  with,  or  repug- 
nant to  any  of  its  provision."  So  far  from  repealing  this  part 
of  the  act  of  1715,  the  act  of  1798  seems  to  recognise  the  right 
of  choice  in  the  minor.  For  by  sub.  chap.  12,  sec.  2,  the 
Orphans  courts  are  authorised  "to  call  or  have  brought  before 
them,  any  orphan  for  the  purpose  of  appointing  a  guardian." 


OF  MARYLAND.  245 


Compton  vs.  Compton. — 1844. 


Wby  have  them  brought  into  court  to  have  a  guardian  ap- 
pointed, if  they  are  not  to  be  consulted  in  reference  to  the  ap- 
pointment? This  provision  seems  to  imply  the  right  of  choice, 
and  the  uniform  and  invariable  practice  in  all  the  Orphans 
courts  through  the  State  has  been,  from  their  organization  to 
the  present  day,  to  allow  the  right  of  choice  precisely  in  the 
same  manner,  as  was  allowed  by  the  judge  or  commissary  gene- 
ral for  probate  of  wills,  &c.,  under  the  act  of  1715,  sec.  7. 
They  have  never  construed  the  act  of  1798  as  repealing  the 
act  of  1715,  in  this  particular ;  and  in  the  case  of  Kraft,  vs. 
Wickey,  argued  in  this  court  as  late  as  1832,  4  Gill  fy  John. 
339,  the  counsel  in  the  cause  seem  to  have  recognised  the  act 
of  1715,  sec.  7,  as  still  in  force  in  this  State,  so  far  as  relates 
to  this  right  of  selection  of  guardians  by  minors.  So  important 
a  privilege  as  this  is,  to  the  infant  citizens  of  this  republic, 
ought  not  to  be  taken  away  from  them  by  mere  construction 
or  implication.  There  ought  to  be  express  words  of  repeal, 
before  the  courts  should  permit  so  serious  an  invasion  of  the 
rights  of  infants.  It  is  comfidently  submitted,  that  no  such 
express  words  of  repeal  can  be  found  in  any  subsequent  sta- 
tute of  the  State,  and  it  is  difficult  to  discover  any  principle 
of  law  which  would  require  the  courts,  ever  watchful  as  they 
are  over  the  rights  and  interests  of  minors,  to  deny  to  them 
this  inestimable  privilege. 

The  right  to  choose  guardians  before  the  age  of  fourteen, 
and  whenever  they  are  capable  of  making  prudent  selections, 
being  thus  established  to  be  in  all  orphans,  how  far  the  Or- 
phans  courts  are  bound  by  their  selection,  when  made?  will  be 
the  next  subject  of  inquiry.  To  say  that  the  Orphans  courts 
have  an  unlimited  discretion  in  the  matter,  will  be  in  effect  to 
deny  the  right  of  selection  in  the  minor,  for  of  what  avail  or 
benefit  will  it  be,  if  the  Orphans  courts  in  the  exercise  of  a  wild 
and  arbitrary  discretion,  have  the  right  to  over-rule  their  choice 
whenever  they  may  think  proper.  The  act  of  1798  sub.  chap. 
12,  sec.  1,  gives  to  the  Orphans  courts  the  power  to  appoint 
guardians  to  all  orphans  in  this  State,  entitled  to  any  real  or 
personal  estate,  but  this  act  does  not  prescribe  the  rules  which 


246  CASES  IN  THE  COURT  OF  APPEALS 

Compton  vs.  Compton. — 1844. 

are  to  govern  the  Orphans  courts  in  the  exercise  of  that  power. 
They  are  simply  substituted  by  the  act  of  1798,  in  the  place 
of  the  commissary  general,  who  originally  had  that  power, 
under  the  act  of  1715,  leaving  the  principles  and  rules  of  law 
by  which  they  are  to  be  governed  in  the  exercise  of  the  power, 
precisely  where  they  were  prior  to  the  passage  of  the  act  of  1798. 
And  what  were  those  principles  ?  The  authorities  already  cited 
shew  what  they  were,  and  the  extent  to  which  the  right  of  se- 
lection has  been  recognised  in  the  minor.  It  is  only  where 
the  minor  makes  an  improvident  choice,  or  selects  some  person 
manifestly  unsuited  and  unfit  for  the  station,  that  the  Orphans 
courts  can  control  it. 

This  restricted  discretion  is  allowed  to  the  Orphans  courts, 
from  regard  to  the  interests  of  minors,  and  with  a  view  to  pro- 
tect them  in  the  enjoyment  of  the  right  itself.  They  are 
bound  by  the  selection,  if  it  does  not  appear  to  be  imprudent ; 
and  those  who  seek  to  set  aside  the  selection  made,  must 
prove  or  shew  it  to  be  imprudent,  or  in  some  way  injurious  to 
the  minor.  The  same  rule  on  this  subject  will  prevail  here, 
that  prevails  in  the  ecclesiastical  courts  of  England.  "The 
minor  may  himself  nominate  his  guardian,  who  is  then  admitted 
in  that  character  by  the  judge,  but  if  the  minor  makes  an  im- 
proper choice,  the  court  will  control  it."  41  Law  Library, 
69.  McPherson  on  Infants,  75.  If  without  any  proof  of 
unfitness  in  the  person  selected,  or  any  pretext  that  he  has  been 
injudiciously  selected,  the  Orphans  court  disregards  the  right 
of  choice  in  the  minor,  it  would  be  manifest  error  and  the  ex- 
ercise of  an  arbitrary  and  unreasonable  discretion,  which  the 
law  never  designed  to  confide  to  it. 

In  the  case  at  bar,  no  pretext  of  that  sort  is  alleged,  nor 
does  it  appear  that  any  objection  of  that  character  was  made 
to  the  person  who  was  selected  by  the  minor  as  his  guardian. 
It  is  exceedingly  difficult,  therefore,  to  ascertain  any  excusable 
ground  for  the  action  of  the  Orphans  court  in  this  case,  and 
still  more  difficult  to  apply  any  principles  either  of  law  or 
equity,  which  would  justify  the  order  passed  by  them,  by  which 
they  have  so  unceremoniously  impaired  the  infant's  right  of 
choosing  his  own  guardian. 


OF  MARYLAND.  247 


Complon  vs.  Compton. — 1844. 


By  the  act  of  1820,  commonly  known  as  the  act  to  direct 
descents,  the  right  of  election  to  take  the  lands  of  an  intestate, 
at  their  valuation,  is  secured  to  the  eldest  heir.  This  right  of 
election  is  declared  to  be  a  valuable  privilege  by  this  court  in 
the  case  of  Chaney,  vs.  Tipton,  11  Gill  fy  John.  253 ;  and  if 
invaded  or  withheld  by  any  action  of  an  inferior  court,  would 
be  such  a  wrong  as  may  be  redressed  by  the  appellate  court. 

Can  it  be  doubted,  that  the  right  of  an  infant  to  select  his 
own  guardian,  is  of  equal  value  and  concern  to  him  as  the 
right  of  election,  under  the  act  of  1820,  is  to  the  persons  to 
whom  it  is  given?  and  if  in  the  one  case,  an  invasion  of  the 
right  would  be  redressed  on  appeal,  it  is  difficult  to  see  on 
what  grounds  similar  redress  would  be  denied  in  the  other. 
Whenever  a  matter  is  purely  within  the  discretion  of  the  Or- 
phans courts,  as  in  the  case  of  the  granting  of  letters  of  ad- 
ministration in  certain  cases,  it  is  admitted,  that  no  appeal  will 
lie  to  reverse  their  action  ;  but  this  is,  simply,  because  in  such 
cases  no  rights  are  impaired,  or  wrongs  inflicted.  The  Orphans 
courts  having  the  unlimited  discretion  in  such  cases,  are  not 
responsible  for  the  exercise  of  it,  and  the  courts  will  not  intend, 
that  they  have  done  wrong  to  any  one  who  has  a  right  to 
complain. 

But  the  question  now  under  review  is  very  different  from 
that  in  the  case  supposed.  The  right  of  a  minor  to  select  his 
guardian,  is  a  positive  right  secured  to  him  by  law,  and  not  a 
mere  matter  of  appointment,  within  the  discretion  of  the 
Orphans  courts.  If  they  have  discretion  at  all,  it  is  restricted 
in  its  nature,  and  dependent  entirely  on  the  existence  of  pecu- 
liar circumstances,  which  must  be  shewn  to  exist  in  fact,  be- 
fore the  discretion,  as  a  rule  of  action,  arises  at  all.  If  the 
circumstances  do  not  exist,  on  which  depend  the  right  of  dis- 
cretion, then  no  discretion  exists  at  all ;  and  if  in  such  a  case, 
a  court  acts  upon  such  discretion,  thus  assumed  by  them,  where 
it  was  not  intended  to  be  given,  their  action  would  be  errone- 
ous, and  a  clear  case  of  usurpation  of  power.  In  all  such 
cases  it  is  well  settled,  that  an  appeal  will  lie  to  reverse  such 
erroneous  exercises  of  judicial  power. 


248  CASES  IN  THE  COURT  OF  APPEALS 

Compton  vs.  Compton. — 1844. 

THOS.  S.  ALEXANDER,  and  P.  W.  GRAIN,  for  appellee. 

The  question  presented  by  this  record  is,  whether  an  infant 
of  thirteen  years  of  age,  has  a  right  to  appoint  his  own  guar- 
dian? Or  whether  such  appointment  rests  in  the  discretion  of 
the  Orphans  court?  If  the  infant  of  such  age  may  claim  the 
right  of  selection,  then  the  decree  in  this  case  must  be  reversed. 
If,  on  the  other  side,  the  Orphans  court  possesses  the  power 
of  appointment  simply,  or  may  control  the  exercise  of  the  right 
of  selection,  by  an  infant,  (assuming  such  right  to  exist,)  in 
either  case  the  decree  must  be  affirmed. 

By  the  act  of  1798,  ch.  101,  sub.  ch.  12,  sec.  1,  (which  it  is 
apprehended  gives  the  law  to  the  case,)  it  is  enacted,  that 
whenever  land  shall  descend,  or  be  devised  to  a  male,  under 
the  age  of  twenty-one  years,  &c.,  &c.,  and  said  male,  &c., 
shall  not  have  a  natural  guardian,  or  guardian  appointed  by 
last  will,  &c.,  &c.,  the  Orphans  court,  &c.,  shall  have  power 
to  appoint  a  guardian  to  such  infant,  until  the  age  of  twenty- 
one  years,  if  a  male,  &c.,  &c. 

The  power  of  appointment  is  thus  given  over  all  male  in- 
fants, who  at  the  time  of  its  exercise,  may  be  under  the  age 
of  twenty-one  years,  simply,  absolutely  ;  without  restraint,  or 
qualification,  or  exception.  The  power  is  given  to  the  court, 
to  be  exercised  as  its  judicial  discretion  may  dictate;  and  for 
the  due  exercise  of  such  discretion,  it  is  responsible.  It  may 
not  devolve  its  power  on  another,  nor  permit  its  discretion  to 
be  controlled  by  the  caprice  of  the  infant.  Confining  our  atten- 
tion to  the  law  itself,  it  is  ver^  clear,  that  no  distinction  is  made 
between  infants  above,  and  those  under  the  age  of  thirteen 
years  ;  and  if  the  power  of  the  court  may  be  controlled  by  the 
nomination  or  selection,  made  by  an  infant  of  twenty  years, 
then  there  is  no  legal  reason,  wherefore,  the  same  control 
should  not  be  exercised  by  an  infant  of  twenty  months. 

It  is  true,  that  by  sec.  2,  "the  court  shall  have  power  to  call, 
or  have  brought  before  them,  any  orphan  as  aforesaid,  for  the 
purpose  of  appointing  a  guardian."  This  power  is  potential 
merely,  and  we  know,  that  in  practice,  many  guardians  are 
appointed  in  the  absence  of  their  wards.  In  some  cases,  the 


OF  MARYLAND.  249 


Compton  vs.  Compton. — 1844. 


court  calls  the  infant  before  it,  in  order  that  the  infant  may  be 
handed  over  to  the  custody  of  the  guardian.  In  other  cases, 
it  is  exercised  with  a  view  of  consulting  the  infant's  reasona- 
ble inclinations.  But  whatever  may  be  the  considerations  upon 
which  the  enactment  rests,  and  whether  the  authority  is  deemed 
potential  or  imperative,  it  is  very  clear,  that  it  extends  equally 
to  infants  of  all  ages.  And  if  under  pretexts  of  his  right,  to 
appear  before  the  court,  at  the  time  a  guardian  is  to  be  ap- 
pointed for  him,  an  infant  of  fourteen  years,  or  thirteen  years, 
may  claim  the  privilege  of  naming  the  person  who  shall  be 
appointed,  then  may  the  like  privilege  be  claimed  and  exer- 
cised by  an  infant  of  any  age  whatever. 

On  the  part  of  the  appellant,  it  is  attempted  to  control  the 
preceding  enactment,  by  interpolating  therein  the  rights,  which 
it  is  supposed  an  infant  might  have  exercised  by  the  common 
law.  It  is  admitted,  that  at  common  law,  an  infant  owning 
lands  in  socage  tenure,  might  have  selected  his  own  guardian, 
after  the  expiration  of  his  guardianship  by  tenure.  But  this 
admission  does  not  assist  the  appellant,  since  the  guardianship 
in  socage,  continued  until  the  infant  attained  his  full  age  of 
fourteen  years.  The  ecclesiastical  courts  are  likewise  in  the 
habit  of  appointing  guardians,  under  certain  circumstances; 
but,  their  power  to  appoint  a  guardian,  except  for  any  com- 
mitted purposes,  is  denied,  and  it  would  seem,  that  in  those 
courts,  the  power  of  selecting  his  own  guardian,  is  given  to 
any  infant,  who  is  above  the  age  of  seven  years.  If  we  are  to 
derive  authority  to  our  Orphans  courts,  from  the  practice  of  the 
ecclesiastical  courts,  we  must  take  that  practice  as  we  find  it. 
But  this  is  not  contended  for,  and  it  is  by  no  means  certain, 
that  the  literal  admission  of  the  right  of  an  infant,  to  select 
his  own  guardian,  is  not  accompanied  by  the  practical  exercise 
of  the  power,  to  guide  that  selection,  as  the  court  itself  deems 
expedient.  Just  as  a  chapter,  in  the  election  of  a  bishop,  find 
their  responsibilities  alleviated  by  the  intimation,  which  accom- 
panies the  conge  delire;  that  the  crown  will  be  gratified  by 
their  choice,  of  a  particular  individual.  In  my  opinion,  safer 
precedents  may  be  derived,  from  the  provisions  of  the  statute 
32  v.2 


250  CASES  IN  THE  COURT  OP  APPEALS 

Compton  vs.  Compton. — 1844. 

of  12  Car.  2,  ch.  24 ;  and  the  practice  of  the  Court  of  Chan- 
cery, which  to  supply  the  defects  of  the  common  law,  has  been 
compelled  to  exercise  the  power,  of  appointing  guardians  to 
the  persons  and  estates  of  infants.  The  father  and  the  court 
exercise  their  powers,  irrespective  of  the  inclinations  of  the 
infant,  and  in  every  case,  the  appointment  continues  until  the 
ward  attains  his  age  of  twenty-one  years.  For  all  this,  I  refer 
to  McPherson  on  Infants,  (41  Law  Library,)  the  authority  re- 
ferred to  by  the  counsel,  for  the  appellant. 

He  next  refers  to  the  act  of  1715,  ch.  39,  sec.  7,  which 
gives  the  power  of  selection  to  an  infant,  who  is  capable  of 
choosing  his  guardian,  and  hence  argues,  that  there  is  an  age, 
after  which  the  discretion  of  the  court  ceases.  The  act  also 
says,  that  if  the  infant  be  not  at  age,  the  court  shall  appoint. 
It  is  clear  then,  that  the  rule  intended  to  be  established,  was 
not  a  rule  which  was  to  depend  on  the  actual  discretion  of 
the  infant;  but  discretion  was  to  be  imputed  or  denied,  as  a 
legal  conclusion  from  his  age.  And  the  right  is  more  definite, 
and  better  secured,  if  it  is  made  to  depend  on  age,  than  it 
could  be,  if  made  to  rest  on  actual  discretion.  Who  is  to 
judge  of  the  infant's  actual  discretion?  The  court,  and  the 
coincidence,  or  otherwise,  of  the  infant's  selection  with  the 
court's  preference,  would  be  the  conclusive  evidence  of  the  ca- 
pacity of  the  infant.  What  then  was  the  age,  which  deter- 
mined the  court's  discretion?  The  act  of  1763,  ch.  24,  sec. 
2,  which,  extending  the  court's  power  to  some  cases,  not  cov- 
ered by  the  act  of  1715,  empowers  the  court  to  permit  the  in- 
fant, if  above  the  age  of  fourteen  years,  to  choose  his  guardian, 
and  if  under  the  age  of  fourteen  years,  then  the  court  is  to 
appoint.  Now,  treating  these  acts  as  parts  of  one  system, 
the  age  of  fourteen  years,  is  the  age  referred  to  generally,  by  the 
act  of  1715,  and  the  infant's  capacity  is  determined  by  his  age. 
I  care  not  then,  whether  these  acts  shall  form  a  part  of  our 
statutory  law,  or  are  repealed  as  inconsistent  with  the  provi- 
sions of  the  act  of  1798.  I  incline  to  think,  their  enactments 
are  entirely  inconsistent  with  the  broad  and  unlimited  discre- 
tion, which  is  given  to  the  Orphans  courts,  by  the  act  of  1798 : 


OF  MARYLAND.  251 


Compton  vs.  Compton. — 1844. 


and  infer  from  the  diversity  in  those  provisions,  an  intent  on 
the  part  of  the  legislature,  to  withdraw  from  the  infant  the 
anomalous  power  of  appointing  the  guardian,  who  is  to  check 
and  control  him  at  the  very  age,  when  experiences  teaches  us, 
a  youth  is  the  least  controllable.  If  we  can  notice  the  origin 
of  the  act  of  1798,  we  may  fairly  infer,  from  the  character  of 
its  author,  an  intent  to  substitute  a  power,  concurrent  and  co- 
extensive with  that  of  the  Court  of  Chancery,  to  appoint  as 
guardian  the  person  whom  the  court  may  deem  best  fitted,  to 
exercise  all  the  functions  pertaining  to  the  office  of  guardian. 
In  crediting  this  concurrence  of  jurisdiction,  the  most  mis- 
chievous consequences  would  result,  if  it  was  understood,  that 
if  taken  before  the  court  of  chancery,  the  infant  would  have 
to  acquiesce  in  the  appointment,  to  be  made  by  the  court; 
whilst  he  was  at  liberty,  by  going  before  the  Orphans  court,  of 
selecting  a  guardian  for  himself.  I  refer  to  the  North 
Carolina  Reports,  Hayw.  350,  303,  Mills  vs.  McAllister-, 
and  especially  to  the  note  at  the  end  of  the  case,  for  the  pur- 
pose of  showing,  that  the  court  may  and  should  exercise, 
without  restraint,  its  power  of  appointment. 

If  the  court  possessed  the  power  of  appointment,  then  its 
action  in  this  case  is  conclusive.  A  variety  of  cases  are  to  be 
found,  in  which  it  has  been  adjudged,  that  the  appellate  court 
will  not  attempt  to  control  the  court  of  the  first  instance,  in 
the  exercise  of  powers  confided  to  its  discretion,  and  surely  no 
subject  can  be  suggested,  in  regard  to  which,  it  is  more  impor- 
tant, that  the  court  having  personal  intercourse  with  the  in- 
fant, and  the  competitors  for  the  care  of  his  person  and  pro- 
perty, should  be  the  ultimate  judges  of  their  relative  merits. 

Admit  this  court  to  have  a  control  over  the  discretion  of  the 
Orphans  court,  to  set  aside  its  judgment,  when  such  judgment 
is  shown  to  have  been  predicated  upon  improper  or  clearly 
insufficient  grounds,  is  there  any  thing  on  the  face  of  this  re- 
cord to  show,  that  the  court's  discretion  was  not  rightly  exer- 
cised? The  facts  on  which  the  court  acted;  the  grounds  of 
their  decision,  are  not  stated.  The  infant's  petition  alone  is 
relied  on,  as  evidence  of  the  qualifications  of  the  person  norni- 


252  CASES  IN  THE  COURT  OF  APPEALS 

Cornplon  vs.  Compton. — 1844. 

nated  by  him.  But,  the  averments  in  that  petition,  are  not  in 
themselves  evidence,  nor  are  they  sustained  by  proof.  Were 
it  otherwise,  the  statements  made  by  the  infant  may  well  stand 
•with  other  facts,  which,  if  disclosed,  would  show  the  entire 
unfitness  of  his  nominee;  neither  the  influence  which  he  has 
acquired  over  the  infant,  nor  his  literary  attainments,  lead  to 
the  conclusion,  that  his  moral  qualities  are  such  as  we  should 
require  in  the  guardian  of  a  youth  ;  and  it  is  by  no  means  im- 
probable, that  the  proceedings,  which  are  contemplated  by  the 
appellee,  were  designed  for  the  assertion  of  some  right  of  pro- 
perty of  the  infant,  against  the  person,  whose  influence  over 
the  infant,  has  occasioned  this  controversy.  I  am  not  at  liberty 
to  state  the  particulars  which  have  been  communicated  to  me; 
but  I  am  instructed,  and  may  so  say  in  general,  that  the  court 
below,  acted  on  grounds  very  satisfactory  to  itself;  and  to  re- 
quest, in  justice  to  that  court,  nay,  more  especially  for  the 
welfare  of  the  infant,  that  the  decree  may  not  be  reversed,  and 
the  guardianship  of  the  infant  changed,  without  affording  us 
an  opportunity  of  showing  the  grounds  on  which  the  appellee 
was  preferred.  In  the  present  state  of  the  record,  every  pre- 
sumption is  to  be  made  in  favor  of  the  decree.  There  is  noth- 
ing on  the  face  of  the  record,  to  convict  them  of  improper, 
immature  judgment.  If  the  power  of  the  court  over  the  sub- 
ject, is  conceded,  then  must  it  be  assumed,  that  it  has  rightly 
acted,  3  G.  $  Johns.  39,  Owens  vs.  Collinson;  and  I  appre- 
hend this  consequence  will  follow,  whether  it  is  supposed  the 
court  possessed  the  power  of  appointment  simply,  or  possessed 
a  power  of  controlling  an  injudicious  choice,  on  the  part  of 
the  infant.  If  the  right  of  the  infant  to  select,  is  subject  to 
any  control,  then  ought  we  to  assume,  it  was  properly  con- 
trolled in  this  instance,  1  Coxe,  397,  Eldridge  vs.  Lippincott, 
here  conceded,  that  the  mother  was  prima  Jade  entitled  to  the 
guardianship.  Yet,  the  court  having  appointed  another,  with- 
out assigning  reasons  therefor,  the  Court  of  Appeals  presumed 
there  were  adequate  reasons  for  setting  her  aside.  Admit  with 
us,  that  the  right  of  the  infant,  when  improperly  exercised,  may 
be  controlled,  and  we  may  very  confidently  rely  on  the  above 


OF  MARYLAND.  3.53 


Compton  vs.  Compton. — 1844. 


case  as  an  authority,  in  point,  in  our  favor.  Will  its  applica- 
tion be  avoided  by  asserting,  that  our  youth,  when  by  the 
exuberance  of  their  passions  they  are  most  likely  to  be  led 
astray,  shall  have  the  absolute  and  uncontrolled  power  of  se- 
lecting their  guardians  and  advisers?  I  know  that  the  power 
existed,  without  any  legal  control,  at  the  common  law.  The 
same  may  be  predicated  of  our  acts  of  1715  and  1763 ;  and 
henee,  I  conclude  very  confidently,  that  our  legislature  of  1798, 
designed  to  abrogate  a  rule  which  cannot  be  observed,  with- 
out entailing  upon  our  sons  and  daughters  the  most  evil  con- 
sequences. 

Nothing,  be  it  observed,  is  said  against  the  fitness  of  the 
appellee.  He  is  the  nearest  of  kin  to  the  infant,  the  surviving 
administrator  of  the  estate  of  the  infant's  father.  If  his  per- 
sonal qualifications  are  admitted,  there  is  propriety  in  selecting, 
as  guardian,  the  person  who  is  already  possessed  of  the  in- 
fant's estate.  The  infant's  subsistence  is  most  surely  provided 
for;  and  all  rights  of  the  infant  against  him,  as  guardian  and 
administrator,  are  saved,  until  the  infant  attains  his  majority. 
These  are  important  considerations. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

This  appeal  must  be  dismissed :  from  an  order  of  the  Orphans 
court,  appointing  a  guardian  to  an  infant,  no  appeal  will  lie. 

It  is  the  duty  of  the  Orphans  court,  in  appointing  his  guar- 
dian, to  consult  the  interests,  rather  than  the  wishes  of  the  in- 
fant. If  the  latter  was  competent,  without  control,  to  choose 
his  guardian,  it  would  be  scarcely  necessary  for  him  to  have 
one.  He  might  also  choose  his  own  boarding-house,  his  in- 
structers.  and  others  whose  services  he  needed.  The  Orphans 
court,  in  the  discharge  of  this  duty,  may  make  an  injudicious 
choice ;  but  it  is  not  probable  that  this  court,  without  any  in- 
formation to  assist  them,  could  exercise  such  a  power  more 
judiciously. 

From  such  an  order,  it  would  not  be  more  proper  for  this 
court  to  entertain  an  appeal,  than  from  an  order  of  the  county 
court,  granting,  or  refusing  to  grant,  a  new  trial. 

APPEAL    DISMISSED. 


254  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

THOMAS  BURGESS,  COLLECTOR  OF  PRIMARY  SCHOOL  DIS- 
TRICT, No.  30,  OF  HOWARD  DISTRICT,  vs.  ARTHUR 
PUE,  JR. — December  1844. 

In  an  action  of  replevin,  brought  by  a  taxable  inhabitant  against  a  collector 
of  the  school  tax,  to  recover  property  seized  for  non-payment  of  such  tax, 
due  for  1843,  having  filed  his  affidavit  on  which  he  obtained  the  writ, 
affirming  that  the  property  had  been  taken  by  such  collector,  he  cannot 
maintain  that  the  school  district  is  disorganized,  and  the  power  of  the 
taxables  suspended  by  reason  of  informalities  in  the  proceedings  of  such 
district,  for  the  year  1842. 

Nor  that  the  election  for  1843  was  void,  because  the  minutes  of  the  proceed- 
ings of  the  taxables  did  not  state  every  thing  to  have  been  done,  which  the 
law  requires  to  be  done ;  as,  that  the  election  should  be  by  ballot.  It  is  not 
necessary  that  the  mode  of  election  should  appear  on  the  minutes,  nor  that 
they  should  show  the  clerk  had  bonded. 

The  taxables  when  assembled;  may  vote  a  tax,  as  well  for  the  expenses  for 
the  current  year,  as  to  pay  arrearages  due  for  essential  expenses  of  the  pre- 
ceding year. 

Notice  of  the  time  and  place  of  meeting  of  the  inhabitants,  to  authorise  the 
imposition  of  a  school  tax  under  the  act  of  1825,  should  be  given. 

In  such  an  action,  the  collector  need  not  offer  proof  of  his  qualification.  He 
is  an  officer  de  facto,  and  in  the  absence  of  proof,  no  presumption  is  to 
be  made  against  his  qualification. 

The  act  of  1825,  does  not  forbid  the  appointment  of  one  of  the  trustees  to 
be  the  clerk  of  the  school  district. 

The  legislature  had  the  right  to  delegate,  to  those  appointed  to  exercise  them, 
viz :  the  taxable  inhabitants,  the  powers  given  by  the  act  of  1825,  ch. 
The  individuals  to  whom  those  powers  were  delegated,  ought  to  conform 
to  the  provisions  of  the  law  under  which  they  act ;  but  the  minutes  of  their 
proceedings  need  not  show  all  the  facts  necessary  to  give  them  jurisdiction. 
Governed  by  the  nature  of  the  trust  conferred,  and  the  great  confidence 
reposed,  by  the  law,  in  the  judgment  of  such  inhabitants,  the  court  will 
presume  any  thing  which  the  law  requires  to  be  done,  to  be  rightly  done, 
until  the  contrary  appears. 

Upon  a  case  stated,  which  does  not  authorise  the  court  to  give  judgment  for 
either  party,  this  court  can  give  no  judgment,  but  must  reverse  that  of  the 
court  below,  and  remand  the  cause. 

In  the  case  of  corporations,  the  recording  of  an  official  bond  is  not  essential 
to  its  validity,  unless  it  be  so  expressly  declared. 

A  vote  or  resolution,  appointing  an  agent  for  a  corporation,  need  not  be  en- 
tered on  the  minutes,  but  may  be  inferred  from  the  fact  of  accepting  his 
services,  or  permitting  him  to  act. 


OF  MARYLAND.  255 


Burgess  vs.  Pue. — 1844. 


Persons  acting  publicly  as  officers  of  a  corporation,  are  presumed  to  be  right- 
fully in  office. 

An  election  by  a  corporation,  contrary  to  its  charter,  is  voidable ;  yet  if  an 
officer  has  come  in  under  color  of  right,  and  not  in  open  contempt  of  all 
rights  whatever,  he  is  an  officer  de  facto. 

APPEAL  from  Howard  District  Court. 

This  was  an  action  of  replevin,  commenced  by  the  appellee 
against  the  appellant,  on  the  4th  September  1843,  founded  on 
the  following  warrant,  viz  : 

"To  John  L.  Moore,  clerk  of  Howard  District  of  Ji.  Jl.  co. 
Howard  District  of  Anne  Jirundel  county,  to  wit : 

Whereas,  on  this  4th  of  September  1843,  before  me  the 
subscriber,  one  of  the  justices  of  the  peace  of  the  State  of  Ma- 
ryland, in  and  for  the  said  district,  Arthur  Pue,  jr.,  of  the  said 
district,  made  oath,  that  two  pied  oxen  belonging  to  him  have 
been  illegally  and  unjustly  seized  in  execution  for  school  taxes, 
for  district  No.  30,  by  the  collector,  Thomas  Burgess,  which 
affidavit  is  hereto  annexed  :  Whereby  it  appears  to  me,  that 
it  is  necessary  for  the  purposes  of  justice,  that  a  replevin 
should  issue  ;  you  are  hereby  empowered  and  directed  to  issue 
a  replevin  for  the  following  chattels  taken  as  aforesaid,  to  wit, 
"two  pied  oxen,"  and  this  shall  be  your  warrant  for  the  same. 
Witness  my  hand  and  seal  this  4th  day  of  September,  1843. 

JAMES  A.  FROST.     (Seal.)" 

"Howard  District  of  Anne  Jirundel  county,  to  wit:  Be  it 
remembered,  that  on  this  4th  day  of  September  1843,  be- 
fore me  the  subscriber,  one  of  the  justices  of  the  peace  of  the 
State  of  Maryland,  in  and  for  the  said  district,  personally  ap- 
peared Arthur  Pue,  jr.,  of  the  said  district,  and  made  oath 
on  the  Holy  Evangely  of  Almighty  God,  that  two  pied  oxen 
have  been  illegally  and  unjustly  seized  by  the  collector,  Thomas 
Burgess,  for  the  school  taxes  for  primary  school  district  No. 
30,  of  said  district. 

Sworn  before  JAMES  A.  FROST.     (Seal.)" 

Replevin  bond  was  filed  and  approved.  The  writ  of  reple- 
vin issued,  and  the  oxen  were  replevied  and  delivered  to  the 
plaintiff  below,  who  filed  his  declaration  for  the  same. 


256  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs,  Puo — 1844. 

The  defendant  pleaded 

1.  JVbn  cepit. 

2.  An  avowry,  in  which  he  alleged,  that  the  said  place  where 
the  taking  of  the  goods  and  chattels,  aforesaid,  is  supposed  to 
be,  is  within  the  limits  of  primary  school  district  No.  30,  of 
Howard  District  of  Anne  Jlrundel  county,  and  that  at  a  meet- 
ing of  the  taxable  inhabitants  of  said  primary  school  district, 
duly  convened  and  held  in  said  district  on  the  29th  day  of 
July  1843,  it  was  among  other  things  voted,  that  a  tax  of  six- 
teen cents  on  every  hundred  dollars  worth  of  assessable  pro- 
perty in  said  district  be  raised,  to  defray  the  expenses  of  the 
school  in  said  district,  and  the  said  defendant  was  then  and 
there  duly  elected  and  appointed  collector  of  said  district,  and 
to  collect  the  aforesaid  tax ;  and  the  said  defendant  accepted 
said  office,  and  duly  qualified  as  such  collector,  as  aforesaid  ; 
and  received  from  the  trustees  of  said  primary  school  district, 
duly  appointed  and  qualified  as  such,  a  rate  bill  made  by  the 
said  trustees,  and  containing  the  names  of  the  persons  charge- 
able with  the  aforesaid  tax,  with  the  sums  respectively  payable 
by  them  agreeably  to  law,  and  a  warrant  in  due  form  of  law, 
requiring  the  said  defendant,  as  collector  as  aforesaid,  to  col- 
lect the  sums  chargeable  against,  and  payable  by  said  persons 
respectively,  according  to  law.     And  because  the  said  plaintiff 
was  chargeable  with  the  sum  of  $37.491,  part  of  the  tax 
aforesaid,  so  as  aforesaid  voted  and  assessed,  and  because  the 
said  plaintiff  utterly  refused  to  pay  the  aforesaid  sum  of  money 
or  any  part  thereof,  unto  the  said  defendant,  as  collector  as 
aforesaid,  within  the  time  limited  by  law  for  that  purpose,  or 
at  any  time  prior  to  the  aforesaid   taking,  although   payment 
thereof  of  the  said  plaintiff,  was  by  the  said  defendant,  as  col- 
lector as  aforesaid,  in  due  form  of  law  demanded,  that  is  to 
say,  on  the  day  and  year  aforesaid,  at  the  county  aforesaid ; 
the  said  defendant  well   avows  the  taking  of  the  said   goods 
and  chattels  in  said  place,  where,  &c.,  and  justly,  &c.,  for  the 
said  sum  of  $37.49^,  so  being  in  arrears   and   collectable  by 
the  said  defendant,  as  collector  as  aforesaid,  which  to  the  dis- 
tress of  said  defendant,  as  collector  as  aforesaid,  was  charged 


OF  MARYLAND.  257 


Burgess  vs.  Pue. — 1844. 


and  bound,  and  this  he  is  ready  to  verify.     Wherefore,  he 
prays  judgment  and  a  return,  &c. 

The  plaintiff  joined  issue  on  the  1st  plea,  and  replied  to  the 
avowry. 

1st.  That  the  said  defendant,  at  the  said  time  when,  &c., 
was  not  the  collector  of  primary  school  district,  No.  30,  duly 
elected,  qualified  and  authorised  to  collect  the  taxes  imposed 
in  said  district,  in  manner  and  form  as  the  said  defendant 
hath  above,  in  his  said  avowry  in  that  behalf  alleged ;  and 
this,  &c. 

2nd.  That  the  meeting  of  the  taxable  inhabitants  of  said 
primary  school  district,  held  on  the  29th  July  1843,  by  which 
the  tax  mentioned  in  the  said  avowry  is  avowed  to  have  been 
made,  was  not  duly  convened  and  held  in  said  district,  and 
was  not  authorised  to  impose  and  vote  said  tax;  and  this, &c. 

3rd.  That  the  taxable  inhabitants  of  said  primary  school 
district,  No.  30,  were,  on  the  15tb  July  1843,  notified  to  meet 
on  the  29th  July,  (at  the  school  house  in  said  district,)  of  said 
year,  for  the  purpose  of  electing  officers,  and  voting  a  tax  for 
the  support  of  the  school  for  the  ensuing  year,  and  the  said 
taxable  inhabitants,  on  the  said  29th  July,  at  the  said  school 
house,  in  said  meeting,  voted  a  tax  to  defray  the  necessary 
expenses  of  the  district,  during  the  past  and  for  the  current 
year,  which  tax  is  the  same  in  the  said  avowry  mentioned ; 
and  this,  &c. 

4th.  That  the  tax  voted  by  the  said  meeting  of  the  taxable 
inhabitants  of  school  district,  No.  30,  in  said  avowry  men- 
tioned, was  not  voted  at  an  annual  meeting  of  the  taxables  of 
said  district,  duly  convened  and  held,  and  this  the  said  plain- 
tiff is  ready  to  verify;  wherefore  he  prays  judgment,  &c. 

5th.  That  on  the  29th  July  1843,  there  was  no  legally  or- 
ganised school  district  meeting,  authorised  and  empowered  to 
vote  a  tax  on  the  inhabitants  of  said  district,  and  this  the  said 
plaintiff  prays  may  be  enquired  of  by  the  country,  &c. 

6th.  That  at  a  meeting  of  the  taxables  of  the  said  supposed 
school  district,  No.  30,  held  on  the  30th  July  1842,  a  tax  of 
eight  cents  in  the  hundred  dollars  of  assessable  property  in 
33         v.2 


258  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

said  district,  was  voted  for  the  expenses  of  said  school  district 
for  the  ensuing  year,  and  a  rate  bill  or  tax  list  made  out  and 
placed  in  the  hands  of  the  defendant,  with  a  warrant  thereto 
annexed,  commanding  him  to  collect  of  the  said  plaintiff  the 
sum  of  $18.74|,  among  others  of  the  taxable  inhabitants  of 
said  district,  by  virtue  of  which  proceedings  and  warrant,  the 
said  defendant  seized  and  took  the  property  of  the  said  plain- 
tiff, in  payment  of  the  said  sum  of  $18.74f- ;  whereupon  the 
said  plaintiff  sued  out  of  Howard  District  court  of  Anne 
Jlrundel  county,  a  writ  of  replevin  against  the  said  defendant, 
on  which  writ  such  proceedings  were  afterwards  had  in  said 
court,  that  a  judgment  thereon  was  given  for  the  plaintiff,  as 
will  appear  from  the  record  of  said  court,  and  the  said  plaintiff 
in  fact  saith,  that  the  tax  imposed  by  said  meeting  of  the  tax- 
able inhabitants  of  said  supposed  school  district,  No.  30,  at 
the  meeting  of  the  29th  of  July  1843,  was  voted  to  defray  the 
expenses  of  the  past  and  for  the  current  year ;  and  the  said 
plaintiff  further  in  fact  saith,  the  said  defendant  hath  appealed 
from  the  judgment  of  Howard  District  court,  in  the  action  be- 
tween the  said  plaintiff  and  the  said  defendant,  on  the  writ  of 
replevin,  sued  out  by  the  plaintiff  as  aforesaid,  which  appeal 
is  still  pending  and  undecided,  and  this  the  said  defendant  is 
ready  to  verify;  wherefore  he  prays  judgment,  &c. 

7th.  That  the  sum  voted  as  a  tax,  at  the  meeting  of  the 
taxables  of  the  said  supposed  school  district,  No.  30,  held  on 
29th  July  1843,  was  not  raised  in  due  proportion  on  all  the 
taxable  inhabitants  of  said  district,  and  this  he  is  ready  to 
verify;  wherefore  he  prays  judgment,  &c. 

It  was  then  agreed,  by  the  parties,  that  this  cause  be  sub- 
mitted to  the  court  here,  on  the  following  statement  of  facts: 

It  is  agreed  and  admitted,  that  a  meeting  purporting  and 
claiming  to  be  an  annual  meeting  of  the  taxable  inhabitants  of 
primary  school  district,  No.  30,  in  Howard  District,  held  on 
the  29th  July  1843,  at  the  primary  school  house  in  said  dis- 
trict, pursuant  to  notice,  by  George  L.  Stockett,  (who  assumed 
to  act  as,  and  during  the  then  preceding  year  had  publicly 
acted  as  the  clerk  of  the  district,)  set  up  at  the  school  house, 


OK  MARYLAND.  259 


Burgess  vs.  Pue. — 1844. 


and  other,  the  most  public  places  in  the  district,  for  the  space 
of  time  required  by  law,  a  tax  of  sixteen  cents  on  every  one 
hundred  dollars  of  assessable  property  in  the  district,  was  im- 
posed and  laid  to  defray  the  necessary  expenses  of  the  district, 
during  the  past  and  for  the  current  year;  that  George  L. 
Stockett,  George  Ellicott  and  Isaac  P.  Ijams,  were  elected  trus- 
tees of  said  district  for  the  ensuing  year,  and  the  defendant 
was  elected  collector  thereof,  and  the  said  collector  gave  bond 
with  security,  for  the  performance  of  his  duties  as  collector,  as 
appears  from  the  copy  of  the  minutes  of  the  book  of  pro- 
ceedings of  said  district  hereto  annexed,  marked  A,  as  a  part 
of  this  statement,  (which  copy  it  is  agreed,  shall  be  taken  and 
received  as  full  proof  of  the  entries  therein,  as  if  the  original 
was  before  the  court  duly  proved,)  and  which  is  in  the  follow- 
ing words,  to  wit: 

"A  copy  of  the  proceedings  of  primary  school,  No.  30,  of 
Howard  District  of  A.  Ji.  county. 

PRIMARY  SCHOOL. — Notice  is  hereby  given,  that  the  an- 
nual meeting  of  the  free  white  male  citizens  of  the  State  of 
Maryland,  above  the  age  of  twenty-one  years,  and  actual  resi- 
dents of,  and  taxable  in  school  district,  No.  30,  of  Howard 
District  of  Ji.  Ji.  county,  will  be  held  at  the  school  house  in 
said  district  on  Saturday,  the  29th  day  of  July  next,  at  10 
o'clock,  A.  M.,  for  the  purpose  of  electing  officers  and  voting 
a  tax  on  the  assessable  property  of  the  district,  for  the  sup- 
port of  the  school  for  the  ensuing  year. 

July  15th,  1843.  GEO.  L.  STOCKETT,  Clerk." 

"29th  July  1843.  At  a  public  meeting  of  the  taxable  inhabi- 
tants of  primary  school  district,  No.  30,  in  Howard  District 
of  j2.  Ji.  county,  convened  according  to  public  notice,  given 
by  handbills  placed  at  the  following  places,  to  wit,  one  at 
Lilly's  tavern,  one  at  llchester  mills,  one  at  Mrs.  Williams'' 
tavern,  one  at  school  house,  No.  30,  and  one  published  in  the 
Howard  District  Press.  The  meeting  was  then  organized  by 
calling  George  Ellicott  to  the  chair,  and  appointing  McLane 
Brown,  secretary.  The  trustees  laid  before  the  meeting  a  com- 
munication from  the  counsel  engaged  to  defend  the  suits  brought 


260  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Puo.— 1844. 

against  Thomas  Burgess,  collector ;  and  after  considering  the 
same,  the  following  resolutions  were  adopted  : 

1st.  Resolved,  that  Thomas  Burgess,  collector,  be  instructed 
to  suspend  all  further  proceedings  in  the  collection  of  the  tax 
imposed  by  the  resolutions  of  the  meeting  held  on  the  30th 
July  1842. 

2nd.  Resolved,  that  a  tax  of  sixteen  cents  on  the  one  hun- 
dred dollars  of  assessable  property,  in  the  district,  be  imposed 
on  said  property,  to  defray  the  necessary  expenses  of  the  dis- 
trict, during  the  past  and  for  the  current  year. 

3rd.  Resolved,  that  every  taxable  inhabitant,  who  shall  have 
paid  the  sum  assessed  to  him  by  the  resolution  passed  on  30th 
July  1842,  shall  be  entitled  to  retain  the  sum  so  paid  by  him 
out  of  the  tax,  which  he  may  be  liable  to  pay  under  the  above 
resolutions. 

The  above  three  resolutions  were  unanimously  adopted,  the 
people  voting  by  ballot.  On  motion,  George  L.  Stockett  read 
the  trustees'  report.  On  motion  of  Reuben  P.  Hammond,  the 
trustees'  report  was  unanimously  adopted.  On  motion  of 
McLane  Brown,  George  L.  Wight  and  Levy  Chaney  were  ap- 
pointed to  count  the  ballots,  when  it  appeared  there  were 
thirteen  votes  in  favor  of  the  report  and  none  against  it.  On 
motion,  Mr.  Hammond,  George  L.  Stockett,  George  Ellicott, 
and  Isaac  P.  Ijams,  were  put  in  nomination  for  trustees  for  the 
ensuing  year.  On  motion  of  Mr.  Brown,  the  meeting  then 
proceeded  to  ballot.  On  motion,  Mr.  Ijams,  George  L.  Wight 
and  Levy  Chaney  were  appointed  to  count  the  ballots,  when  it 
appeared  thirteen  ballots  were  deposited,  and  that  there  were 
thirteen  vo'ces  for  George  L.  Stockett,  thirteen  votes  for  George 
Ellicott,  and  thirteen  votes  for  Isaac  P.  Ijams,  one  member  of 
the  meeting  refusing  to  vote.  George  Ellicott,  George  L. 
Stockett  and  Isaac  P.  Ijams,  were  therefore  declared  duly 
elected  trustees  for  the  ensuing  year.  On  motion  of  Mr. 
Stockett,  the  meeting  proceeded  to  ballot  for  clerk,  McLane 
Brown  being  in  nomination.  On  motion  of  Mr.  J.  P.  Ijams, 
George  L.  Wight  and  Levy  Chaney  were  appointed  to  count 
the  ballots,  when  it  appeared  Mr.  Brown  was  unanimously 
elected. 


OF  MARYLAND.  261 


Burgess  vs.  Pue. — 1844. 


On  motion  of  Mr.  Stockeft,  the  meeting  proceeded  to  ballot 
for  collector,  Thomas  Burgess  being  in  nomination;  on  motion 
of  /.  P.  Ijams,  George  L.  Wight  and  Levy  Chaney  were  ap- 
pointed to  count  the  ballots,  when  it  appeared  that  Thomas 
Burgess  had  thirteen  votes,  being  the  whole  number  of  votes 
cast,  and  he  was  declared  unanimously  elected.  On  motion 
of  Mr.  Ijams,  the  minutes  of  the  meeting  was  read  by  the 
secretary.  On  motion  of  Mr.  Stockett,  the  meeting  was  then 
adjourned  to  the  29th  July  1844,  and  the  proceedings  signed 
by  the  chairman  and  secretary. 

(Signed,)         GEOBGE  ELLICOTT,  Chairman. 

McLANE  BROWN,  Sec'y" 

"Annualjreport  of  the  trustees  of  primary  school,  No.  30,  of 
Howard  District  of  Jl.  A.  county. 

The  trustees  of  primary  school,  No.  30,  report,  that  at  the 
last  annual  meeting  of  the  resident  taxable  inhabitants,  held 
on  the  30th  July  1842,  we  were  elected  trustees  for  the  ensu- 
ing year,  and  at  the  same  time,  a  levy  of  eight  cents  on  the 
one  hundred  dollars  of  taxable  property  in  the  school  district, 
was  voted  for  the  support  of  the  school;  that  it  was  estimated 
$160,  but  only  $22  has  been  collected  and  received.  We 
have  received  from  the  school  commissioners  of  Howard 
District  $90,  and  from  the  State  fund  $55.25,  from  the 
monthly  payments  of  the  children  attending  school  $36 — 
in  all  about  $203.25.  We  have  paid  for  teacher's  salary 
$182.62,  for  books,  stationary  and  stove,  $43.21,  but  there 
is  now  due  for  stationary  and  teacher's  salary  about  $65, 
which  is  estimated  in  the  expenses  for  the  ensuing  year.  Cir- 
cumstances having  occured,  not  necessary  here  to  mention, 
makes  it  necessary  that  a  levy  of  16  cents  on  the  $100  of 
taxable  property  in  the  school  district,  be  made  to  meet  the 
expenses  of  the  school  for  the  past  and  ensuing  year,  this  we 
estimate  to  be  about  $560.  We  estimate  the  levy  of  16  cents, 
will  produce  about  $390 ;  the  monthly  payments  of  the  chil- 
dren about  $25,  and  from  the  State  fund  and  commissioners 
of  the  district  about  $145,  which  we  think  will  be  sufficient 
to  defray  the  necessary  expenses  of  the  school  for  the  ensuing 


262  CASES  IN  THE  COURT  OK  APPEALS 

Burgess  vs.  Pue. — 1844. 

year,  and  meet  its  liabilities  for  the  past  year.     All  of  \vhich 
is  respectfully  submitted. 

(Signed,)  GEORGE  ELLICOTT, 
GEO.  L.  STOCKETT, 
J.  P.  IJAMS,  Trustees." 

"Copy  of  clerk's  bond. 

Know  all  men  by  these  presents,  that  we,  McLane  Brown 
and  Edward  Brown,  of  Howard  District  of  Jl.  A.  county,  are 
held  and  firmly  bound  unto  the  State  of  Maryland,  in  the  just 
and  full  sum  of  $300,  current  money,  to  be  paid  to  the  said 
State  of  Maryland,  or  its  certain  attorney,  to  which  payment 
well  and  truly  to  be  made,  we  bind  ourselves  and  every  of  us, 
our  heirs,  executors  and  administrators,  jointly,  severally  and 
firmly  by  these  presents,  sealed  with  our  seals,  and  dated  this 
31st  day  of  July,  in  the  year  1843.  Now  whereas,  the  above 
bound  McLane  Brown  has  been  duly  appointed  clerk  of  pri- 
mary school  district,  No.  30,  of  Howard  District  of  Anne 
Arundel  county. 

The  condition  of  the  above  obligation  is  such,  that  if  the 
said  McLane  Brown  shall  well  and  faithfully  execute  the  office 
of  clerk,  as  aforesaid,  according  to  law,  then  this  obligation  to 
be  void  and  of  no  effect,  otherwise  to  remain  in  full  force  and 
virtue  in  law.  (Signed,)  MCLANE  BROWN,  (Seal.) 

EDWARD  BROWN.  (Seal.) 

Signed,  sealed  and  delivered  in  presence  of 
MARSHALL  D.  MAXWELL." 

"A  copy  of  tax  list  for  1843,  at  16  cts.  on  the  $100.  Mc- 
Lane Brown,  $2,146,  $3.43^,  and  forty-two  other  taxables. 

"Received  1st  August  1843,  of  the  trustees  of  primary 
school,  No.  30,  Howard  District,  a  copy  of  the  above  tax  list  for 
collection,  which  is  to  be  returned  collected,  within  sixty  days. 
(Signed,)         THOMAS  BURGESS." 

"A  copy  of  collector's  bond. 

Know  all  men  by  these  presents,  that  we,  Thomas  Burgess 
and  Washington  Gaither,  of  Howard  District  of  Jinne  Jlrundel 
county,  are  held  and  firmly  bound  unto  the  State  of  Maryland, 
in  the  full  and  just  sum  of  $384,  current  money,  to  be  paid  to 


OF  MARYLAND.  263 


Burgess  vs.  Pue. — 1844. 


the  said  State,  or  its  certain  attorney  or  assigns,  to  which  pay- 
ment well  and  truly  to  be  made,  we  bind  ourselves  and  every 
of  us,  our  and  every  of  our  heirs,  executors  and  administrators, 
jointly  and  severally,  and  firmly  by  these  presents,  sealed  with 
our  seals  and  dated  this  1st  day  of  August,  in  the  year  of  our 
Lord  1843 :  whereas,  the  above  bound  Thomas  Burgess  has 
been  duly  appointed  collector  of  primary  school  district,  No. 
30,  in  Howard  District  of  Anne  Jirundel  county;  now  the 
condition  of  the  above  bond  is  such,  that  if  the  said  Thomas 
Burgess  shall  well  and  faithfully  execute  the  office  of  collector, 
as  aforesaid,  according  to  law,  this  obligation  to  be  void,  other- 
wise to  be  and  remain  in  full  force  and  virtue. 

(Signed,)          THOMAS  BURGESS,  (Seal.) 

WASHINGTON  GAITHER,  (Seal.) 

Signed,  sealed  and  delivered  in  the  presence  of 
McLANE  BROWN. 

A  true  copy  from  the  school  book,  McLANE  BROWN,  Clerk." 

Which  bond  of  said  collector  was  accepted  and  approved 
by  the  said  trustees  who  had  accepted  their  appointment,  and 
were  acting  as  trustees  as  aforesaid,  and  that  the  said  trustees 
so  acting  as  such,  made  out  a  rate  bill  or  tax  list,  for  raising 
the  aforesaid  tax  on  all  the  assessable  property  in  the  district, 
and  in  due  proportion ;  but  the  said  plaintiff  alleges,  that  the 
resolutions  annexed  thereto,  qualify  said  rate  bill  and  render 
said  proportion  unequal,  delivered  the  same  with  their  warrant, 
requiring  him  to  collect  the  aforesaid  sums  from  the  persons 
charged  therewith,  with  the  resolutions  adopted  at  said  meet- 
ing, from  No.  1  to  No.  3  inclusive,  annexed  to  said  rate  bill 
and  warrant. 

It  is  further  agreed,  that  the  copy  of  the  proceedings  of  the 
said  primary  school  meeting,  and  of  the  bond  of  the  defendant, 
as  collector  aforesaid,  and  rate  bill  and  warrant  aforesaid,  at- 
tached to  and  made  a  part  of  this  statement,  may  be  read  by 
the  plaintiff,  for  the  purpose  of  shewing,  (if  he  can,)  any 
irregularity  or  defect  in  the  proceedings  of  said  meeting,  or  in 
the  appointment  or  qualifications  of  the  said  trustees  or  col- 
lector, which  will  in  law,  negative  the  authority  of  said  trustees 


264  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

or  collector  to  act  as  such,  and  the  admissions  herein  previ- 
ously made,  are  to  be  taken,  subject  to  this  limitation.     It  is 
further  admitted,  that  in  the  year  1832,  a  primary  school  was 
organized  in  said  district,  and  ever  since  has  been  kept  up  in 
fact ;  but  the  regularity  and  legality  of  such  organization  and 
continuance  is  denied  by  the  plaintiff,  and  affirmed  by  the  de- 
fendant.    It  is  admitted,  that  the  trustees  and  clerk  elected  on 
the  30th  July  1842,  at  the  meeting  of  the  taxables  of  said 
school  district  (claiming  and  professing  to  be  the  annual  meet- 
ing duly  convened,  but  which  claim  is  denied  by  the  plaintiff,) 
of  that  year,  were  elected  viva  voce,  and  not  by  ballot,  the 
plaintiff  being  present  and  voting,  and  no  objection  having 
been  made  to  said  proceeding,  and  that  the  said  trustees  and 
clerk  continued  to  act  as  such  until  the  29th  July  1843,  and 
that  no  district  meeting  of  the  taxables  of  said  district  was 
formed  or  organised  by  the  commissioners  of  primary  schools, 
in  the  interval  or  up  to  the  time  of  the  commencement  of  this 
suit,  and  no  trustees,  clerk,  or  collector,  were  appointed  by  the 
commissioners  of  primary  schools,  for  school  district  No.  30, 
since  the  said  school  first  went  into  operation.     It  is  further 
admitted  and  agreed,  that  the  record  of  proceedings  in  the 
action  of  replevin  between  the  present  parties,  tried  and  de- 
termined in  this  court  at  March  term,  1843,  and  now  depending 
in  the  Court  of  Appeals,  shall  be  taken  as  part  of  this  state- 
ment, and  that  any  fact  therein  admitted,  shall  be  admitted 
herein,  and  the  plaintiff  is  allowed  to  rely  on  the  papers  in  said 
cause,  and  the  minutes  of  proceedings  hereto  annexed,  marked 
B.,  as  follows,  to  wit :  the  9th  annual  meeting  of  primary 
school,  in  district  No.  30,  A.  A.  county.     29ih  July,  1839, 
minutes  of  the  9th  annual  meeting  of  the  taxable  inhabitants 
in  district  No.  30,  A.  A.  county.     On   motion  of  McLane 
Brown,  George  L.  Stockett  was  called  to  the  chair ;  and  on 
motion  of  Anthony  Smith,  McLane  Brown  appointed  secretary 
pro.  tern.     On  motion  of  McLane  Brown,  the  report  of  the 
trustees  was  read  by  George  L.  Stockett,  and  on  motion  of 
McLane  Brown,  the  report  was  unanimously  adopted.     On 
motion,  the  treasurer's  report  was  read  and  adopted.     On  mo- 


OF  MARYLAND.  265 


Burgess  vs.  Pue. — 1844. 


tion  of  McLane  Brown,  the  meeting  proceeded  to  the  election 
of  officers  for  the  ensuing  year,  when  Mr.  Brown  nominated 
A.  Smith,  George  L.  Stockett  and  J.  P.  Ijams,  as  trustees  for 
the  ensuing  year;  the  aforesaid  gentlemen  were  unanimously 
elected  trustees  for  the  ensuing  year ;  and  on  motion,  McLane 
Brown  was  elected  clerk  for  the  ensuing  year ;  and  on  motion 
of  McLane  Brown,  Anthony  Smith  was  duly  elected  collector. 
On  motion  of  Mr.  Smith,  the  meeting  adjourned  to  the  last 
Saturday  of  July  1840. 

The  10th  annual  meeting  of  P.  S.}  in  district  No.  30,  A.  A. 
county,  1st  August  1840.  Minutes  and  proceedings  of  the 
10th  annual  meeting  of  the  taxable  inhabitants  in  district  No. 
30,  A.  A.  county.  On  motion  of/.  S.  Williams,  Dr.  R.  G.  Stoc- 
kett was  called  to  the  chair,  and  J.  S.  Williams  appointed  secre- 
tary. On  motion,  it  was  resolved,  under  the  laws  regulating 
primary  schools  of  A.  A.  county,  this  meeting  deem  it  incom- 
patible for  the  trustees  of  primary  schools,  to  hold  at  the  same 
time  the  office  of  commissioner  or  inspector  of  primary  schools. 
On  motion,  it  was  resolved,  that  when  the  number  of  scholars 
in  this  school  district  amount  to  thirty,  that  the  trustees  be  re- 
quested not  to  admit  any  scholars  from  any  neighbouring  dis- 
trict. On  motion,  it  was  resolved,  that  nine  cents  on  the  $100 
be  levied  on  this  district,  for  the  ensuing  year.  On  motion, 
Anthony  Smith,  J.  P.  Ijams,  and  George  L.  Stockeit,  were 
elected  trustees,  and  George  L.  Stockett  to  act  as  secretary, 
pro.  tern.  On  motion,  it  was  resolved,  that  the  annual  meeting 
be  held  on  the  last  Saturday  in  July,  hereafter,  at  10  o'clock, 
A.  M.  On  motion,  the  meeting  adjourned,  sine  die. 

GEO.  L.  STOCKETT,  Clerk,  pro.  tem." 

"July  31st,  1841.  The  llth  annual  meeting  of  taxable  in- 
habitants of  primary  school  district,  No.  30,  Howard  District 
of  A.  A.  county.  On  motion  of  George  L.  Stockett,  Thomas 
Maccrea  was  called  to  the  chair,  and  George  L.  Stockett  ap- 
pointed as  clerk.  On  motion,  it  was  resolved,  that  a  tax  of 
eight  cents  on  the  $100  be  levied  on  the  taxable  property  of - 
district,  for  the  ensuing  year.  On  motion  of  Thomas  Maccreay 
George  L.  Stockett,  ./.  P.  Ijams  and  George  L.  Wight,  were 
34  2v. 


266  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Puc. — 1844. 

appointed  trustees  for  the  ensuing  year.  On  motion  of  George 
L.  Wight)  it  was  resolved,  that  the  report  of  the  trustees  be 
adopted.  On  motion  of  /.  P.  Ijams,  it  was  resolved,  that 
this  meeting  do  adjourn  to  the  last  Saturday  of  July  1842,  at 
10  o'clock,  A.  M. 

July  30th,  1842.  The  12th  annual  meeting  of  the  taxable 
inhabitants  of  primary  school  district,  No.  30,  Howard  District 
of  A.  A.  county  conrened,  and  on  motion,  George  Ellicott  was 
called  to  the  chair,  and  McLane  Brown  appointed  secretary.  On 
motion,  the  secretary  read  the  trustees  annual  report;  Mr.  Ijams 
moved  the  adoption  of  said  report,  determined  in  the  affirma- 
tive; McLane  Brown  moved  a  levy  of  eight  cents  in  the  $100; 
C.  S.  W.  Dorsey  moved,  as  a  substitute,  four  cents,  determined 
in  the  negative.  The  vote  was  then  taken  on  McLane  Brown's 
motion,  and  determined  in  the  affirmative.  Mr.  Wight  nomi- 
nated George  L.  Stockett,  J.  P.  Ijams  and  George  Ellicott,  as 
trustees  for  the  ensuing  year ;  Henry  H.  Pue  nominated  Levi 
Chaney,  Anthony  Smith  and  William  Smith ;  the  question  was 
then  taken  on  the  nomination  of  George  L.  Stockett,  unani- 
mously elected  ;  J.  P.  Ijams  and  George  Ellicott,  unanimously 
elected ;  Mr.  Ijams  nominated  George  L.  Stockett  as  clerk, 
elected  unanimously.  On  motion  of  C.  S.  W.  Dorsey,  re- 
solved, that  the  trustees  report  to  the  next  annual  meeting  the 
number  and  names  of  the  children  attending  school,  and  who 
pay  capitation  tax,  and  the  time  of  their  attendance.  On 
motion  of  A.  Smith,  the  meeting  adjourned,  to  meet  on  the 
last  Saturday  of  July  1843,  at  10  o'clock,  A.  M. 

(Signed,)         GEO.  ELLICOTT,  Chairman. 

McLANE  BROWN,  Sfec'y." 

And  all  other  proceedings  in  the  minutes  of  the  proceedings 
of  said  school  district,  to  be  read  from  the  minute  book,  for  the 
purpose  of  showing  a  defect  or  want  of  legal  authority  in  the 
meeting  of  taxables  of  29th  July  1843,  to  impose  said  tax, 
and  in  the  defendant  as  collector,  or  for  any  other  cause ;  the 
defendant  denying,  however,  the  right  of  the  plaintiff  to  rely 
on  any  part  of  said  proceedings  of  any  meeting  anterior  to  the 
29th  July  1843,  for  any  such  purpose.  It  is  further  admitted, 


OF  MARYLAND.  267 


Burgess  vs.  Puo. — 1844. 


that  the  plaintiff  is,  and  on  the  29th  day  of  July  1843,  was, 
a  taxable  inhabitant  of  said  primary  school  district,  and  charged 
as  such  tvith  the  tax  imposed,  as  aforesaid ;  that  payment  there- 
of being  refused,  the  said  defendant  seized  the  property  in 
the  proceedings  mentioned,  these  being  the  property  of  the 
plaintiff,  and  within  the  aforesaid  district,  and  held  the  same 
for  payment  of  said  tax,  but  no  objection,  whatever,  is  to  be 
taken  to  the  regularity  of  the  proceedings  of  the  defendant, 
provided  he  was  legally  and  duly  authorised  to  demand  pay- 
ment, as  aforesaid.  It  is  further  admitted  and  agreed,  that  the 
minutes  of  proceedings  of  school  district  No.  30,  marked  B. 
shall  be  received  as  legal  evidence  of  the  facts  therein  stated, 
as  if  the  original  book  was  duly  proved  ;  upon  the  foregoing 
statement  of  facts  and  such  inferences  thereupon  as  a  jury  might 
fairly  draw,  it  is  submitted,  whether  said  defendant  had  lawful 
authority  as  collector,  as  aforesaid,  to  take  the  property  of  the 
plaintiff,  aforesaid ;  the  case  is  submitted  to  the  court,  with 
liberty  to  either  party  to  appeal. 

RICH'D.  I.  BOWIE,  for  plaintiff. 
THOS.  S.  ALEXANDER,  for  defendant. 

The  plaintiff  then  insisted,  that  the  act,  entitled,  an  act  to 
provide  for  the  public  instruction  of  youth  in  primary  schools 
throughout  the  State,  and  the  several  supplements  thereto,  are 
unconstitutional  and  void. 

2nd.  That  the  tax  laid  at  the  meeting  of  the  taxables  of 
primary  school  district,  No.  30,  of  Howard  District,  held  on 
the  29th  July  1843,  was  illegal  and  void  ;  because  the  trustees, 
clerk,  and  other  officers,  elected  at  the  preceding  annual  meet- 
ing of  the  30th  July  1842,  were  not  elected  by  ballot,  but  viva 
voce,  and  the  clerk  did  not  bond,  whereby  the  said  district 
meeting  was  disorganised,  and  the  powers  of  the  taxables 
suspended;  and  the  annual  meeting  of  the  29th  July  1843, 
was  called  without  due  authority  of  law,  the  commissioners  of 
primary  schools  being  the  proper  persons  to  re-organise  said 
district  meetings. 

3rd.  That  the  notice  declared  the  object  of  the  meeting  to 
be  "for  the  purpose  of  electing  officers  and  voting  a  tax,"  &c. 


k268  CASES  IN  THE  COURT  OF  APPEALS 


Burgess  vs.  Pue. — 1844. 


"for  the  support  of  the  school  for  the  ensuing  year;"  the  tax 
laid  was  to  defray  the  expenses  of  the  district  during  the  past, 
and  for  the  current  year. 

4th.  That  the  tax  is  retrospective,  and  not  prospective,  is 
not  within  the  purview  of  the  acts,  but  for  purposes  not  pre- 
scribed by  them. 

5th.  That  the  tax  was  not  laid  at  the  annual  meeting  of  the 
taxables  of  the  district. 

6th.  That  two  taxes  have  been  laid  in  the  same  year  for  the 
same  purpose. 

7th.  That  the  sum  voted  as  a  tax,  was  not  raised  in  due 
proportion  on  all  the  taxable  property  in  said  district. 

8th.  That  the  property  of  the  plaintiff  has  been  before  seized 
and  taken  for  a  part  of  the  sum  now  demanded  of  him  as  a 
tax,  and  for  which  his  property  is  now  seized,  and  a  suit  is 
now  pending  in  the  Court  of  Appeals,  involving  the  validity 
of  the  tax  first  laid. 

9th.  That  the  said  taking  was  illegal  and  wrongful,  because 
the  said  defendant  had  not  duly  qualified  as  collector  of  said 
tax,  according  to  law. 

10th.  That  the  person  assuming  to  act  as  clerk,  was  ineli- 
gible, having  previously  been  elected  trustee,  and  acted  as 
such ;  he  could  not  act  in  both  capacities,  and  the  proceedings 
shew  he  acted  as  trustee,  and  did  not  qualify  as  clerk. 

The  county  court  rendered  judgment  for  the  plaintiff,  and 
the  defendant  appealed  to  this  court. 

The  cause  was  argued,  on  notes,  before  ARCHER,  C.  J., 
CHAMBERS,  SPENCE  and  MAGRUDER,  J. 

By  T.  S.  ALEXANDER,  for  the  appellant. 

The  constitutional  objections  to  the  primary  school  system 
were  opened  and  fully  discussed  on  the  former  appeal,  and  are 
now  under  consideration.  On  the  present  occasion,  the  appel- 
lant's counsel  will  confine  himself  to  the  discussion  of  the 
questions  of  irregularity,  which  are  peculiar  to  this  case, 


OF  MARYLAND.  269 


Burgess  vs.  Pue. — 1844. 


2.  It  is  alleged,  that  the  proceedings  of  the  meeting  held  in 
July  1843,  were  void,  because  of  the  irregular  proceedings  of 
the  meeting  in  July  1842,  which  it  is  said,  disorganized  the 
district,  and  suspended  the  powers  of  the  taxables. 

The  specific  irregularities  alleged,  are,  that  the  trustees  and 
clerk  were  elected  viva  voce,  and  not  by  ballot;  and  that  the 
clerk  did  not  give  bond,  as  required  by  law.  I  have  already, 
in  the  former  case,  discussed  the  effect  of  the  irregularity  in 
the  manner  of  conducting  the  elections  of  1842,  and  shown, 
as  I  trust,  that  it  is  cured  by  the  act  of  1828,  chap.  169,  sec.  5. 

The  only  effect  of  the  irregularity,  if  not  cured,  would  be 
to  avoid  all  the  acts  of  the  meeting  of  1842.  It  cannot  dis- 
organize the  district,  or  dissolve  the  corporation.  In  9  Wen- 
dell, 35,  Reynolds  vs.  Moore,  and  in  7  Wendell,  341,  Ring  vs. 
Grant,  it  has  been  decided,  that  in  an  action  like  the  present, 
the  plaintiff  cannot  show  an  irregularity  or  defect  in  the  origi- 
nal organization  of  the  district.  If  a  defect  in  the  original 
organization,  which  shows  that  the  district  was  never  duly 
organised,  cannot  be  relied  on,  for  the  purpose  of  avoiding 
subsequent  proceedings  of  the  district,  you  cannot,  on  any 
principle,  admit  that  proceedings,  in  themselves  regular,  of  a 
district  regularly  organized,  shall  be  avoided  by  proof  of  an 
intermediate  irregularity.  The  act  of  1825,  chap.  162,  sec, 
9,  expressly  provides,  that  the  clerk,  trustees,  and  collector, 
once  duly  appointed,  shall  continue  in  office  until  their  succes- 
sors shall  have  been  elected.  An  irregularity  or  defect  in  the 
mode  of  conducting  an  election,  may  vitiate  the  whole  pro- 
ceeding. It  cannot  disorganize  the  district,  since  provision  is 
made  to  supply  the  defect  created  by  a  failure  to  elect,  by  an 
election,  which,  by  reason  of  its  irregularity,  is  to  be  treated 
as  no  election. 

The  taxables  of  the  district,  having  the  power  of  assessing 
taxes,  and  electing  officers  to  manage  their  local  affairs,  con- 
stitute for  those  purposes  a  corporation;  a  corporation,  not 
private  but  public,  and  clothed  with  political  powers  of  great 
moment.  Now,  it  is  not  true,  that  a  political  corporation,  en- 
trusted with  important  political  functions,  can  be  dissolved  by 


270  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Puc. — 1844. 

an  irregularity  in  its  proceedings,  or  in  the  succession  of  its 
officers  or  members.  As  a  general  rule,  the  acts  of  a  person 
claiming  to  be  invested  with  a  particular  office,  and  exercising 
publicly,  and  with  general  assent  or  acquiescence,  the  powers 
annexed  to  that  office,  must  be  respected.  The  remedy  against 
usurpation,  is  to  be  found  in  the  exercise  of  the  power  of 
amotion.  You  cannot  avoid  the  act  of  the  intruder;  much  less 
can  you  affirm,  that  an  acquiescence  by  a  corporation,  in  an 
intrusion,  shall  work  a  dissolution  of  the  body.  The  commis- 
sioners of  Anne  Arundel  county  constitute  a  corporation.  The 
law  provides  for  a  continued  succession  of  its  members,  and 
I  grant,  for  the  purpose  of  the  argument,  that  an  election  ir- 
regularly conducted,  would  not  clothe  the  persons  elected  with 
the  legal  character  of  corporators.  Yet,  if  the  persons  claim- 
ing to  be  the  commissioners  under  such  irregular  election,  were 
permitted  to  assume  the  office  of  commissioners;  to  possess 
themselves  of  the  records  of  the  corporation;  to  adjust  the 
county  expenses  and  impose  a  tax,  and  to  appoint  a  collector 
and  other  local  officers,  could  it  be  safely  affirmed,  that  those 
proceedings  were  simply  void,  that  the  collector  could  not  en- 
force the  collection  of  the  tax?  that  the  killing  of  a  constable 
thus  appointed,  whilst  in  discharge  of  the  duty  incident  to  his 
office,  would  not  be  murder?  Will  it  be  argued,  that  an  irregu- 
larity in  conducting  the  elections  of  commissioners  in  the  year 
1842,  dissolved  the  corporation,  and  that  the  persons  now 
acting  as  commissioners,  in  virtue  of  an  election  in  1843,  are 
exercising  the  functions  of  an  office  which  has  no  existence? 
If  none  of  those  positions  can  be  maintained,  it  will  be  still 
more  difficult  to  prove  that  a  corporation,  aggregate  of  an  in- 
definite number,  exercising  in  general  meetings  its  most  impor- 
tant functions,  can  be  dissolved  by  a  failure  to  elect,  or  mere 
irregularity  in  electing  an  executive  officer.  The  consequence 
of  maintaining  the  judgment  of  the  county  court,  in  this  case, 
will  be,  that  every  one  who  is  not  inclined  to  pay  his  State  or 
county  taxes,  will  attain  his  object,  by  examining  into  the  pro- 
ceedings of  the  commissioners  for  some  five  years  past.  None 
of  them,  it  is  apprehended,  will  endure  a  severe  scrutiny.  It 


OF  MARYLAND.  271 


Burgess  vs.  Pue. — 1844. 


is  impossible  to  adopt  any  legal  principle  in  support  of  the 
proceedings  of  the  county  commissioners,  which  will  not  ap- 
ply with  equal  force,  when  invoked  to  the  aid  of  the  proceed- 
ings of  the  taxables  and  their  trustees.  And,  indeed,  their 
case  is  placed  beyond  the  reach  of  cavil  by  the  act  of  1828, 
chap.  169,  sec.  5,  which  expressly  commends  the  primary 
school  system  to  the  protection  of  our  courts  of  judicature, 
and  declares,  that  no  proceedings  of  the  taxables  or  of  the 
trustees,  shall  be  set  aside,  or  adjudged  to  be  void  for  defect 
of  form,  or  any  irregularity  therein,  so  as  the  requisitions  of 
the  acts  are  substantially  complied  with.  The  informal  or 
irregular  proceeding  is  to  be  sustained;  and  yet  it  is  to  be  ar- 
gued, that  such  informality  or  irregularity  shall  work  a  disso- 
lution! 

This  act  avoids  all  consequences  of  an  irregular  or  informal 
proceeding,  and  therefore  would  repeal  any  inconsistent  provi- 
sion, which  existed  in  the  previous  act  of  1825,  chap.  162. 
But  in  fact  no  inconsistency  is  to  be  discovered.  Section  eight 
of  this  last  act,  provides  for  the  original  organization  of  the 
district,  and  for  the  failure  to  organize  after  meeting,  by  an 
adjournment  without  day,  or  from  any  other  cause.  It  cannot 
apply  as  a  perpetual  provision.  After  the  first,  or  other  meet- 
ing, has  appointed  a  day  for  holding  future  annual  meetings, 
there  can  be  no  adjournment  without  day,  in  the  sense  of  the 
section.  After  one  election,  duly  conducted,  the  offices  will 
remain  filled;  and  provision  is  made  for  other  meetings,  at 
which  the  omissions  of  the  annual  meetings  may  be  supplied. 
If  in  all  these  important  particulars,  the  law  has  so  anxiously 
guarded  against  the  consequences  of  irregularity,  it  is  reasona- 
ble to  infer,  that  informalities  of  less  importance  were  not  de- 
signed to  accomplish  a  disorganization. 

Nor  is  it  unworthy  of  notice,  that  the  effect  of  the  irregu- 
larity is  expressly  submitted  by  the  law  to  the  judgment  of 
the  commissioners,  and  they  are  the  exclusive  judges  of  every 
question  arising  under  the  provisions  of  that  section.  If  in 
their  opinion,  the  district  has  from  any  cause  been  dissolved, 
they  are  to  convene  another.  Can  any  court  of  justice  or  other 


272  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

jurisdiction,  in  opposition  to  their  judgment,  determine  that 
the  first  meeting  was  not  dissolved,  and  sustain  the  proceed- 
ings of,  and  officers  appointed  by  the  first  meeting,  against  the 
proceedings  of,  and  officers  appointed  by  the  second  meeting? 
If  the  commissioners  should  determine  that  the  meeting  was 
not  dissolved,  and  refuse  to  convene  another,  could  a  court  of 
justice  reverse  that  judgment,  and  annul  the  proceedings  of 
the  first  meeting?  And  what  would  be  the  consequences  of 
such  judgment  of  reversal?  The  district  would  be  deprived 
of  its  school,  and  of  its  capacity  to  organize  another,  since 
the  initiatory  proceeding  must  be  taken  by  the  commissioners. 
We  are  brought,  then,  to  this  alternative:  the  section  com- 
mented on  must  refer  to  an  original  meeting  exclusively;  or 
the  question  of  dissolution,  by  the  irregularity  of  a  subsequent 
meeting,  must  be  referred  to  the  jurisdiction  of  the  commis- 
sioners ?  Either  alternative  may  be  adopted  by  our  adversa- 
ries, since  it  is  to  be  inferred  from  the  record,  that  the  com- 
missioners treat  this  as  a  regularly  organised  district. 

The  failure  of  the  clerk,  appointed  in  1842,  to  give  bond, 
could  not  work  a  dissolution,  The  giving  of  bond  is  essen- 
tial to  his  due  qualification.  But  a  vacancy  in  the  office  of 
clerk,  does  not  disorganize  a  district.  Neither  is  such  effect 
produced  by  a  failure,  on  the  part  of  the  taxables,  to  elect  a 
clerk  by  ballot.  Provision  is  made  by  the  law  for  the  con- 
tinuance in  office,  of  the  officer  once  inducted,  until  the  regu- 
lar appointment  of  his  successor.  We  have  shown  the  case 
of  a  clerk,  duly  elected  and  inducted,  and  entitled,  because  of 
the  irregularity  in  a  recent  election,  to  hold  over,  and  yet  yield- 
ing his  office  to  another,  who  claims  under  such  recent  elec- 
tion, which  by  reason  of  such  irregularity  may  be  avoided. 
All  the  cases  shew,  that  the  acts  of  such  usurping  clerk,  exer- 
cising the  functions  of  clerk  with  the  assent  of  the  person 
lawfully  invested  with  that  office,  and  with  public  approbation, 
must  be  respected  as  if  he  had  been  legally  inducted  into  office. 
9  Wendell,  17,  McCoy  vs.  Curlier.  7  Wendell,  Ml,' Ring  vs. 
Grant.  5  Wendell,  231,  Wilcox  vs.  Smith. 


OF  MARYLAND.  373 


Burgess  vs.  Pue. — 1844. 


The  record  admits,  that  the  persons  giving  notice  of  the 
meeting  of  1843,  was  elected  (though  the  argument  concedes 
irregularly,)  clerk  by  the  meeting  of  1842;  that  he  acted  as 
clerk,  from  his  election  up  to  the  time  of  meeting  in  1843, 
without  objection  to  his  authority  as  such.  Upon  those  cases 
and  those  admissions,  I  insist,  that  the  notice  in  pursuance  of 
which  the  meeting  of  1843  was  convened,  is  to  be  treated  as 
given  by  the  duly  qualified  clerk.  I  deny  next  the  necessity 
for  any  notice  of  an  annual  meeting.  The  time  of  holding 
the  annual  meeting  is  fixed  by  the  taxables,  and  all  persons 
are  bound  to  take  notice  of  that  day.  The  law  requiring  the 
clerk  to  give  notice  of  such  meeting,  is  directory  merely.  I 
think  this  may  safely  be  inferred  from  section  10,  and  pro- 
viso to  section  8  of  the  act  of  1825,  chap.  162.  But  this 
point  was  discussed  in  the  former  case,  and  is  therefore  to  be 
rested  on  that  discussion. 

3.  Assuming  then  that  the  district  remained  organized,  and 
that  the  clerk  elected  in  1842,  notwithstanding  the  irregulari- 
ties existing  in  his  election  and  qualification,  was  right  in  giv- 
ing notice  of  the  meeting  of  1843,  it  is  next  to  be  shewn,  that 
the  form  of  the  notice  was  sufficient  for  its  purpose.  One 
would  suppose,  that  if  defect  in  form  could  be  tolerated  in  any 
proceeding  whatever,  it  ought  to  be  in  the  form  of  notice. 
No  form  is  prescribed  by  the  law.  The  act  of  1825,  chap. 
162,  sec.  10,  simply  requires  that  notice  shall  be  given  of  the 
time  and  place  of  meeting.  A  designation  of  time  and  place 
is  essential  to  the  notice.  Every  thing  else  is  surplussage. 
Does  a  notice  then,  that  the  meeting  will  be  held  for  the  pur- 
pose of  voting  a  tax  "for  the  support  of  the  school  for  the 
ensuing  year,"  or  for  any  other  specific  purpose,  restrain  the 
meeting  from  transacting  any  business,  which  might  have  been 
transacted  at  a  meeting  convened  after  a  more  general  notice? 
By  no  means.  It  might  possibly  be  argued,  that  where  a  spe- 
cial meeting  is  called  by  the  trustees,  for  a  particular  purpose, 
it  should  transact  no  other  business  than  such  as  occasioned 
its  call.  But  an  annual  meeting  does  not  derive  its  authority 
to  convene,  from  the  order  of  the  trustees  or  notice  of  the  clerk. 
35  v.2 


274  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

Provision  is  made  for  the  annual  meetings  by  the  law,  which 
also  enumerates  the  powers  which  such  meetings  may  exercise. 
It  may  safely  be  affirmed,  that  the  authority  of  an  annual  meet- 
ing to  entertain  and  vote  on  any  particular  subject,  is  not  to 
be  restrained  by  the  notice  of  the  clerk.  Else  may  the  clerk 
defeat  any  purpose  of  the  law.  He  might  omit  to  state  in  his 
notice  that  officers  were  to  be  elected;  and  then  it  might  be 
argued,  that  the  corporation  would  be  dissolved.  He  might 
omit  all  notice  of  the  tax  proposed  to  be  assessed,  and  then 
no  tax  could  be  laid. 

4.  The  tax,  it  is  said,  is  retrospective  in  its  objects,  and  not 
prospective;  is  not  with  the  provision  of  the  acts,  but  for  pur- 
poses not  prescribed  by  them.  The  specific  objection,  as  is 
more  specially  stated  in  the  third  point,  is,  that  the  tax  was 
imposed  "to  defray  the  necessary  expenses  of  the  district  dur- 
ing the  past  and  for  the  present  year."  What  items  are  in- 
cluded under  the  head  of  "necessary  expenses,"  do  not  appear, 
and  consequently  it  cannot  appear  that  the  taxables  have  pro- 
vided for  any  expenditure  which  it  is  not  right  to  provide  for. 
We  are  to  assume  then,  that  they  are  proper  in  their  character, 
and  the  only  question  can  be,  whether  the  taxables  can  raise 
by  taxation,  a  fund  for  payment  of  liabilities  which  they  have 
previously  incurred?  In  discussing  this  question  it  is  to  be 
assumed,  that  the  law  designed  to  confer  on  the  taxables  the 
authority  to  raise  the  sums,  necessary  to  defray  the  expenses 
which  they  might  incur  in  the  exercise  of  their  powers.  And 
that  they  may,  occasionally  experience  the  very  casualties  which 
sometimes  intervene  to  embarrass  other  public  bodies  and  indi- 
viduals. They  may  vote  a  tax  of  $500  to  build  a  school 
house,  which  may  in  fact  cost  them  $1,000.  Would  you  de- 
bar them  of  the  power  of  providing  for  payment  of  the  addi- 
tional expense?  Their  proceedings  in  assessing  a  tax  may  be 
void,  and  may  not  be  so  adjudged  until  after  the  expenses 
which  it  was  designed  to  meet  have  been  incurred.  Would 
you  say  that  those  expenses  should  remain  a  charge  and  in- 
cumbrance  on  the  district,  until  a  special  act  of  the  legislature 
should  enable  them  to  provide  for  its  discharge?  A  school 


OF  MARYLAND.  275 


Burgess  vs.  Pue. — 1844. 


house  may  be  erected  at  a  necessary  cost  of  $2,000,  which 
the  convenience  of  the  district  would  require  to  have  discharged 
by  instalments.  Would  you  subject  the  taxables  to  the  charge 
for  the  entire  amount  in  one  year?  Why  would  you  deprive 
the  taxables  of  this  power  of  providing  for  payment  of  past 
expenses?  No  reason  can  be  given  for  subjecting  the  taxa- 
bles to  this  restraint,  other  than  that  as  the  assessable  property 
in  the  district  is  continually  changing  hands,  a  tax  to  be  im- 
posed at  this  present  time,  would  reach  persons  who  were  not 
subject  to  taxation  during  the  past  year,  and  would  not  reach 
many  who  will  be  subject  to  taxation  during  the  succeeding 
year.  This  was  the  argument  used  in  the  court  below.  It 
assumes,  that  the  persons  owning  properly  at  the  time  a  debt 
is  incurred,  must  defray  their  aliquot  proportion  of  that  debt. 
But  the  act  of  1825,  chap.  162,  sec.  12,  requires  the  tax  to 
be  imposed  on  all  the  assessable  property  in  the  district,  agreea- 
bly to  the  assessment  of  the  last  preceding  tax.  Upon  the 
hypothesis  suggested,  the  county  tax  may  have  been  laid  in 
January,  the  district  tax  may  be  voted  in  December,  to  defray 
the  expenses  of  the  succeeding  year.  All  this  the  argument 
assumes  to  be  admissible.  Is  there  any  greater  injustice  to 
result  from  permitting  the  meeting  in  December,  to  assess  a 
tax  for  the  then  preceding  year?  There  is  nothing  in  the  act, 
(vide  section  8,)  or  in  the  act  of  1828,  chap.  169,  sec.  3, 
which  requires  the  taxation  to  be  prospective.  The  language 
of  those  acts  is  just  as  broad  as  is  to  be  found  in  the  act  of 
1794,  chap.  5,  sec.  1,  which  requires  the  justices  of  the  levy 
courts  to  meet  annually,  "to  adjust  the  ordinary  and  necessary 
expenses  of  their  several  counties."  Under  this  law,  some 
of  the  levy  courts  adjust  their  expenses  already  incurred. 
Others  provide  only  for  future  expenses,  whilst  others  again 
provide  for  expenditures  of  particular  classes  already  incurred, 
and  as  to  others  by  way  of  anticipation.  Will  you  deny  to  a 
levy  court  the  power  of  providing  a  fund,  to  defray  an  expense 
which  is  about  to  be  incurred?  or  to  provide  for  payment  of  a 
debt  already  contracted?  May  not  a  recovery  be  had  against 
a  levy  court  for  a  debt  contracted  by  its  authority?  And 


276  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

would  not  a  court  compel  the  levy  court  to  make  a  levy,  for 
the  purpose  of  discharging  the  judgment?  The  like  law  holds 
with  regard  to  debts  contracted  by  school  trustees,  and  recove- 
ries had  against  them.  To  say  that  the  property  in  the  district 
may  have  changed  hands  since  the  debt  was  incurred,  begs 
the  question.  The  alienation  was  made  cum  onere.  The 
practical  inconvenience  of  assessing,  or  attempting  to  assess 
a  debt  in  due  proportions  on  the  persons  taxable,  at  the  mo- 
ment the  debt  was  contracted,  would  be  extreme.  The  debts 
increase  day  by  day.  The  alienations  are  daily  made.  But 
the  spirit  of  our  institutions  require  that  the  tax-gatherer  should 
be  seen  once  only  in  the  year.  The  13th  section  of  the  Decla- 
ration of  Rights  expressly  declares,  that  every  "person  in  the 
State  ought  to  contribute  his  proportion  of  public  taxes  for 
the  support  of  government,  according  to  his  actual  worth." 
Here  the  charge  is  literally  on  the  persons.  But  no  one  has 
yet  ventured  to  deny  the  right  of  the  legislature,  to  provide 
for  future  exigencies,  or  to  supply  the  deficiencies  created  by 
the  omissions  of  past  legislatures.  Can  we  charge  the  next 
generation  with  the  debt  we  have  created  for  works  of  internal 
improvements? 

5.  That  the  tax  was  not  laid  at  an  annual  meeting.     The 
answers  to  this  objection  are:     1.  There  is  nothing  in  the  law 
which  requires  the  tax  to  be  imposed  at  an  annual  meeting. 
2.  The  notice  states  that  an  "annual  meeting"  will  be  held, 
and  it  is  agreed,  that  the  meeting  purported  and  claimed  to  be 
an  annual  meeting.     From  these  and  the  other  facts  admitted, 
it  is  fairly  to  be  inferred,  that  the  meeting  was  an  annual 
meeting. 

6.  That  two  taxes  have  been  laid  in  the  same  year  for  the 
same  purpose.     This  is  not  true  in  point  of  fact.     One  tax 
was  laid  at  the  12th  annual  meeting,  held  on  the  30th  July, 
(being  the  last  Saturday,)  1842,  the  other  at  the  13th  annual 
meeting,  held  on  the  29th  July,  (being  the  last  Saturday,) 
1843.     The  first  tax  was  voted  to  defray  the  liabilities  then 
incurred  and  contemplated.     The  decision  of  the  Howard  Dis- 
trict court  was  adverse  to  the  right  of  the  trustees  to  collect 


OF  MARYLAND.  277 


Burgess  vs.  Puo. — 1844. 


that  tax.  In  deference  to  the  judgment  of  the  court,  the  taxa- 
bles  suspended  the  collection  of  the  tax,  and  assessed  another 
tax,  out  of  which  they  proposed  to  discharge  the  liabilities 
which  were  intended  to  be  met  by  the  first  tax.  There  are 
not  two  taxes  imposed  for  the  same  purpose.  The  last  vote 
annuls  the  former  vote,  and  all  that  can  be  collected  is  the  last 
tax  assessed. 

7.  That  the  tax  last  voted,  was  not  raised  in  due  proportion 
on  all  the  taxable  property  in  the  district.     The  tax  list  made 
out  is  regular  on  its  face,  and  there  is  nothing  to  show  that  it 
is  not  correct  in  every  particular.     The  only  pretext  for  this 
objection  is,  that  by  the  third  resolution,  "every  taxable  who 
shall  have  paid  the  sum   assessed    to  him  by  the  resolution, 
passed  on  the  30th  July  1842,  shall   be  entitled  to  retain  the 
sum,  so  paid    by  him  out  of  the  tax,  which  he  may  be  liable 
to  pay  under  the  preceding  resolutions."     So  far  from  induc- 
ing inequality,  its  adoption  was  essential  to  produce  equality 
in  contribution  by  the  taxables.     If  partial  collections  of  the 
tax  of  1842  had  been  made,  it  would  have  been  unjust  to 
exact  from  those  who  made  the  payments,  the  entire  amount 
of  the  taxes  assessed  by  the  resolutions  of  1843.     The  further 
collections  of  the  tax  of  1842  being  suspended,  and  the  tax  of 
1843  being  thereby  necessarily  increased,  nothing  was  more 
just  or  equal  than  that  the  monies  paid  on  account  of  the  tax 
of  1842,  should  be  refunded,  or  the  taxable  permitted  to  retain 
the  amount  out  of  the  taxes  chargeable  to  him  in  1843. 

8.  That  the  property  of  the  appellee  has  been  taken  in  exe- 
cution, for  a  part  of  the  sum  now  demanded.     This  is  untrue 
in  point  of  fact.     The  property  was  taken  by  the  collector  of 
1842;  but  was  replevied  by  the  appellee,  and  the  judgment 
in  that  action  was  in  his  favor.     The  appeal  now  pending, 
does  not  affect  in  any  manner  that  judgment  or  its  consequen- 
ces.    If  it  should  be  affirmed,  then  there  would  be  no  ground 
for  the  objection;  if  it  should  be  reversed,  the  appellee  would 
be  entitled  to  discount  the  amount  assessed  to  him  in  1842, 
from  the  sum  claimed  from  him  under  the  proceedings  of  1843. 

9.  That  the  collector  has  not  duly  qualified  according  to 


278  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 


law.  This  objection  does  not  deny  the  due  election  of  the 
collector;  and  indeed,  this  fact  could  not  be  denied,  since  his 
election  is  expressly  affirmed  in  the  record  of  the  proceedings 
of  the  meeting.  His  qualification  is  alone  at  issue.  His  bond 
(the  giving  of  which  constitutes  his  qualification,)  is  set  out 
in  the  record,  and  it  is  admitted,  that  it  was  accepted  and  ap- 
proved by  the  trustees.  It  is  impossible  for  me  to  discover 
any  ground  for  this  objection. 

In  the  argument  of  the  former  case,  I  insisted,  that  the  pro- 
ceeding adopted  in  the  case  assumed,  that  the  defendant  was 
legally  appointed  and  qualified  as  collector.  I  rely  on  that 
argument  in  opposition  to  this  objection  now  taken. 

10.  That  the  person  assuming  to  act  as  clerk  was  ineligible, 
having  been  previously  elected  trustee,  and  acted  as  such. 
That  he  could  not  act  in  both  capacities,  and  the  proceedings 
shew,  that  he  acted  as  trustee  and  not  as  clerk.  This  objec- 
tion is  but  a  variation  of  the  third  objection  :  "The  clerk  of 
1842  was  also  elected  a  trustee.  He  could  not  act  in  both  ca- 
pacities. He  acted  as  trustee,  and  therefore  was  not  clerk." 
That  he  did  act  as  clerk,  is  clear  from  the  notice  under  which 
the  meeting  of  1843  was  held.  _4nd  it  is  distinctly  admitted, 
that  he  continued  to  act  as  clerk  down  to  the  meeting  of  1843. 
He  acted  likewise  as  trustee;  but  this  did  not  vitiate  his  acts  as 
clerk.  There  is  no  incompatibility  between  the  offices  of  clerk 
and  trustee.  16  Johns.  135;  and  if  there  was,  he  was  clerk 
de  facto,  and  I  have  already  shown,  that  as  clerk  de  facto,  his 
notice  was  to  be  respected. 

Having  thus  answered  all  the  objections  taken  on  the  record, 
to  the  authority  of  the  appellant,  to  enforce  payment  of  the 
tax  laid  in  1843,  I  presume  to  ask  a  reversal  of  the  judgment 
of  the  court  below. 

By  R.  I.  BOWIE,  for  the  appellee. 

The  record  in  this  case,  shows  an  action  of  replevin,  brought 
by  the  appellee  against  the  appellant,  for  certain  oxen  seized, 
taken  and  detained  by  the  latter,  under  the  circumstances  set 
forth  in  the  case  stated,  as  appears  in  the  record. 


OF  MARYLAND.  279 


Burgess  vs.  Pue. — 1844. 


The  facts  set  forth  in  the  case  stated,  on  behalf  of  the  appel- 
lant, are  designed  to  show,  that  he  acted  by  virtue  of  and  in 
pursuance  to  the  act  of  1825,  ch.  162,  entitled,  an  act  to  pro- 
vide for  the  public  instruction  of  youth  in  primary  schools, 
&c.,  and  the  several  supplements  thereto;  and  those  intro- 
duced on  the  part  of  the  appellee,  to  show  that  the  seizure, 
caption  and  detention  of  the  cattle,  were  not  authorised  by 
those  acts,  or  any  of  them,  for  the  reasons  specifically  assigned 
(as  appears  from  the  record,)  in  the  court  below;  and  the  ap- 
pellee further  insisted,  that  if  the  caption  and  detention  were 
in  pursuance  of  said  acts,  or  any  of  them,  the  appellee  should 
recover,  nevertheless,  because  those  acts  were  unconstitutional 
and  void. 

The  appellee's  objections  may  then  be  reduced  to  two  heads, 
as  follows : 

1.  That  the  seizure,  caption  and  detention  of  the  appellee's 
property,  were  not  authorised  by  the  acts  of  1825,  chap.  162, 
and  the  several  supplements  thereto. 

2.  That  if  authorised  by  said  acts,  the  appellee  should  re- 
cover, because  those  acts  are  unconstitutional  and  void. 

Under  the  first  point,  assuming  that  the  powers  granted  by 
the  acts  alone  mentioned,  to  the  inhabitants  of  the  primary 
school  districts,  are  "specially  delegated  powers,"  that  the  ju- 
risdiction created  by  those  acts,  is  a  "special  limited  jurisdic- 
tion." The  appellee  insists,  that  the  proceedings  of  the  taxa- 
ble inhabitants  of  the  primary  school  districts,  must  be  in  strict 
conformity  with  the  provisions  of  the  laws  authorizing  them, 
and  should  show  upon  their  face,  the  facts  which  are  necessary 
to  give  them  jurisdiction. 

For  the  1st  branch  of  this  postulate,  vide  the  State  use  of 
the  Levy  Court,  vs.  Merryman,  7  H.  fy  J.  91.  1  H.  Sf  J.  36. 
Quyn,  vs.  the  State  use  of  Pue,  1  H. .  «Sf  /.  359.  Ellicott,  vs. 
the  Levy  Court.  Kerr  and  al,  vs.  the  State,  3  H.  fy  J.  560. 
1  Pick.  109.  Metcalfs  Dig.  361,  362. 

For  the  2nd.  Vide,  Wickes,  vs.  Caulk,  5  Harr.  fy  John. 
42,  43,  45.  Shivers,  vs.  Wilson,  5  Harr.  $  John.  130.  1 
Salkeld,  475.  Cowp.  26,  29.  4  Bac.  Mrid.  656. 


280  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Puo. — 1844. 

The  act  of  1825,  chap.  162,  sec.  8  and  10,  requires  notice 
to  be  given  of  the  annual  meetings. 

Sec.  8,  prescribes  and  limits  the  the  power  to  tax,  "to  pur- 
chase a  site  for  the  school  house,  and  to  build,  keep  in  repair, 
and  furnish  such  school  house  with  necessary  fuel,  books,  sta- 
tionary and  appendages.'* 

The  act  of  1828,  chap.  169,  sec.  3,  authorises  a  tax  on  the 
assessable  property  in  said  district,  for  the  payment  of  the 
salary  of  a  teacher  in  said  district. 

The  objects  of  taxation  being  thus  limited,  and  notice  re- 
quired of  the  annual  meeting  for  these  purposes,  it  is  clear, 
the  proceedings  of  the  meeting  must  be  confined  to,  or  con- 
form with  the  terms  of  the  notice,  otherwise  the  notice  would 
be  nugatory. 

On  the  15th  July  1843,  as  appears  from  paper  A,  in  the  re- 
cord, the  taxable  inhabitants  of  primary  school  district,  No.  30, 
were  notified  to  meet  on  the  29th  of  July  1843,  for  the  pur- 
pose of  "electing  officers,  and  voting  a  tax,  &c.,  for  the  sup- 
port of  the  school  for  the  ensuing  year." 

Under  which  notice,  they  proceeded  to  lay  a  tax,  to  defray 
the  necessary  expenses  of  the  district,  during  the  past  and  for 
the  current  year. 

The  tax  voted,  therefore,  is  not  only  a  tax  not  warranted  by 
the  primary  school  laws,  because  not  within  the  terms  of  those 
laws,  but  is  a  tax  levied  without  notice,  and  contrary  to  notice. 

Again,  the  whole  tenor  of  those  acts  shows,  that  the  taxes 
imposed  should  be  annual  and  prospective,  thereby  protecting 
the  people  from  the  burden  of  accumulated  and  improvident 
expenses'  in  this  case,  in  disregard  of  these  plain  and  salu- 
tary provisions  of  the  laws,  the  tax  is  biennial  and  retrospec- 
tive. The  resolutions  attached  to  the  tax  list  in  paper  A,  show, 
that  the  retrospective  tax  was  designed  to  operate  only  on  the 
appellee,  and  those  who  like  him,  had  refused  to  pay  the  tax 
imposed  in  1842,  the  regularity  and  constitutionality  of  which, 
as  regards  the  appellee,  was  then  "subjudice"  in  this  court. 
This  was  directly  opposed  to  the  12th  section  of  the  act  of 
1825,  chap.  162,  which  provides,  that  if  the  sum  payable  by 


OF  MARYLAND.  281 

Burgess  vs.  Pue. — 1844. 

any  person  named  in  such  tax  list,  shall  not  be  paid  or  col- 
lected within  the  time  limited,  "it  shall  be  lawful  to  renew 
such  warrant,"  not  to  double  the  tax. 

The  legality  of  the  tax  in  1842,  being  then  pending,  by  ap- 
peal, in  this  court,  if  the  same  should  be  pronounced  legal,  the 
appellee  must  be  twice  mulcted  for  one  year's  tax;  or  if  the 
same  should  be  declared  illegal,  the  appellee  must  pay  the 
same,  notwithstanding  the  court's  decision  against  it. 

It  is  further  insisted  by  the  appellee,  that  the  election  of  offi- 
cers, held  in  1842,  being  made  viva  voce,  and  not  by  ballot,  as 
required  by  the  act  of  1825,  chap.  162,  the  primary  school  dis- 
trict, No.  30,  was  disorganised,  and  those  officers  illegally 
elected,  could  do  no  act  for  the  continuation  of  the  corpora- 
tion, but  the  duty  of  re-organization  devolved  upon  the  com- 
missioners of  primary  schools,  as  prescribed  by  said  act  in 
such  cases,  who  did  not,  as  is  admitted  by  the  appellant,  form 
or  organize  any  district  meeting  of  the  taxables  of  said  district 
subsequently. 

2nd.  The  appellee  should  recover,  because  the  acts  of  1825, 
chap.  162,  and  its  supplements,  are  unconstitutional  and  void. 

The  original  act,  sec.  29,  30,  provides,  that  if  the  majority 
of  the  voters  of  any  county  should  be  in  favor  of  the  estab- 
lishment of  primary  schools,  as  therein  provided  for,  then  and 
in  that  case,  the  said  act  should  be  valid  for  such  county  or 
counties,  otherwise  of  no  effect  whatever ;  and  if  a  majority  of 
the  voters  of  any  county  in  this  State  should  be  against  the 
establishment  of  primary  schools,  then  and  in  that  case  the 
said  act  should  be  void. 

This  reference  to  the  people  of  the  counties,  for  the  obliga- 
tion or  sanction  of  a  law,  is  no  where  warranted  by  the  con- 
stitution. It  sprung  either  from  a  desire  to  avoid  the  respon- 
sibility of  legislation,  or  a  mistaken  application  of  that  clause 
of  the  constitution,  which  requires  an  amendment  of  the  con- 
stitution to  be  passed  by  two  successive  legislatures.  What- 
ever the  source,  the  error  is  gross  and  pernicious.  The  coun- 
ties have  no  separate  political  existence  or  character,  &c. 
36  2v. 


282  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

They  are  not  recognised  by  the  constitution,  except  as  mu- 
nicipalities; they  may  be  created  or  changed  by  the  will  of 
the  legislature.  A  law  depending  on  the  assent  or  dissent  of 
a  county,  is  not  more  valid  than  if  it  depended  on  the  assent 
or  dissent  of  any  number  of  individuals,  in  any  other  geo- 
graphical limits,  because  the  people  of  the  county  have  no 
constitutional  right  of  legislating  for  themselves. 

The  legislative  power  of  this  State  is  vested  in  a  General 
Assembly,  consisting  of  Senate  and  House  of  Delegates,  from 
the  counties  and  cities  of  the  State.  The  citizens  of  Jinne 
Jirundel  county,  or  Howard  District,  are  entitled  by  the  con- 
stitution to  the  benefit  of  their  collective  wisdom,  without 
whose  consent,  it  expressly  declares  no  taxes  shall  be  imposed. 
Vide  twelfth  section  Bill  of  Rights. 

By  these  laws,  the  sovereign  power  of  taxation  is  delegated 
to  an  indefinite  number  of  persons;  the  majority  of  those  pre- 
sent may  vote  a  tax  "ad  libitum,"  for  certain  specific  purposes. 
The  representative  form  of  government  is  here  utterly  annulled. 
The  law  of  Parliament,  which  governs  all  deliberative  assem- 
blies, and  is  one  of  the  chief  safe  guards  of  freedom,  is  set  at 
naught:  the  relation  of  representative  and  constituents  (with 
the  accountability  of  the  former,)  destroyed,  and  the  minority 
left  to  the  mercy  of  the  majority  of  a  mass  meeting;  in  other 
words,  of  a  mob.  The  bill  of  rights  and  constitution,  con- 
template and  constitute  a  representative  form  of  government; 
all  the  powers  of  which,  are  to  be  exercised  by  trustees  or 
agents  of  the  public,  to  which  they  are  accountable.  Fourth 
and  fifth  sections  Bill  of  Rights  and  Constitution  of  Maryland. 

"The  bill  of  rights  and  constitution  is  a  compact,  made  by 
the  people  themselves.  In  this  compact,  they  have  distributed 
the  powers  of  government,  and  deposited  the  legislative,  judi- 
cial and  executive  in  separate  and  distinct  hands,  subject  to 
such  limitations  and  restrictions  as  they  thought  proper  to 
prescribe." 

"The  legislature  is  not  omnipotent." 

"The  power  of  determining  the  validity  of  the  acts  of  the 
legislature,  cannot  reside  with  the  legislature.  It  cannot  be 


OK  MARYLAND.  283 


Burgess  vs.  Pue. — 1844. 


exercised  by  the  people,  because  they  cannot  interfere  by  their 
own  compact,  unless  by  elections."  Whlttington  vs.  Polk,  1 
H.  $  J.  242. 

"If  they  cannot  interfere  with  the  judicial  power,  because 
by  their  own  compact  they  have  precluded  themselves,  the 
same  compact  inhibits  the  exercise  of  legislative  powers." 

"The  constitution  portions  out  supreme  power,  and  assigns 
it  to  different  departments,  prescribing  to  each  the  authority  it 
may  exercise."  Crane  vs.  McGinnis,  1  G.  fy  J.  472. 

"The  power  of  making  war,  levying  taxes,  or  of  regulating 
commerce,  are  great,  substantial,  independent  powers  of  sov- 
ereignty, which  cannot  be  implied  as  incidental  to  other  pow- 
ers, or  used  as  a  means  of  executing  them."  McCulloh  vs. 
The  State,  4  ,9.  C.  Con.  Rep.  476. 

"The  only  security  against  the  abuse  of  power  of  taxation, 
is  found  in  the  structure  of  the  government  itself.  In  impos- 
ing a  tax,  the  legislature  acts  upon  its  constituents."  Ibid4S6. 

Such  was  the  security  designed  by  the  constitution  of  Mary- 
land, yet  if  taxes  may  be  imposed  in  detached  districts,  by 
an  inconsiderable  and  inconsiderate  mass,  where  is  the  protec- 
tion to  the  unfortunate  private  citizen  who  may  be  exposed  to 
their  power?  The  constituent  may  groan,  but  the  legislature 
will  not  hear  his  cries,  or  participate  in  his  burdens.  The 
State  of  Maryland  is  not  an  association  of  counties,  its  entire 
territory  and  its  whole  people,  constitute  an  integral  govern- 
ment. 

The  united  wisdom  of  the  General  Assembly  is  the  consti- 
tutional guaranty  of  every  citizen  for  the  protection  of  his  life, 
liberty  and  property. 

It  is  insisted,  the  General  Assembly  cannot  delegate  the 
power  of  taxation  to  the  people  in  mass,  without  the  forms  of 
a  municipality  or  corporation.  If  so,  the  nature  of  the  govern- 
ment might  and  would  thereby  be  radically  changed. 

Representation  or  legislation  by  agents  or  trustees  becomes 
a  nullity ;  the  freedom  and  frequency  of  elections  is  rendered 
abortive ;  and  every  republican  principle  is  merged  in  a  pure 
democracy. 


284  CASES  IN  THE  COURT  OF  APPEALS 


Burgess  vs.  Pue. — 1844. 


The  act  of  1825,  ch.  168,  if  originally  binding,  was  a  com- 
pact between  the  legislature  and  the  counties  accepting  it, 
investing  Ihe  taxable  inhabitants  of  those  counties  with  certain 
valuable  franchises  and  privileges.  Sections  8,  15,  23. 

It  secured  to  them,  upon  complying  with  the  provisions  of 
the  law,  certain  funds,  to  be  applied  to  the  payment  of  the 
salaries  of  teachers.  Sec.  15.  1828,  ch.  55,  sec.  3,  intended 
as  a  bounty  for  the  promotion  of  education. 

The  law  which  was  accepted  by  the  taxable  inhabitants  of 
the  counties  as  an  act  of  grace  and  favor  under  these  induce- 
ments, cannot  constitutionally  be  altered  by  the  act  of  1828, 
ch.  169,  and  converted  into  a  law  for  raising  revenue  for  the 
purposes  of  education.  Dart.  Col.  vs.  Woodward,  4  S.  C. 
Con.  Rep.  579,  581. 

The  act  of  1825,  ch.  162,  was  addressed  to  and  accepted 
by  the  taxable  inhabitants,  and  vested  its  privileges  in  them  ; 
men,  women,  citizens  or  aliens. 

The  act  of  1828,  ch.  169,  transfers  all  the  powers  given  to 
the  taxable  inhabitants  to  the  free  white  male  citizens. 

Thus  limiting  privileges  which  had  previously  been  granted 
to  a  large  class  for  a  valuable  consideration  to  a  comparatively 
small  portion  of  the  community. 

The  appellee  further  insists,  that  if  the  legislature  can  dele- 
gate the  power  of  taxation  and  legislation,  they  must  be  re- 
stored to  the  people  at  large,  from  whom  they  were  derived, 
that  is  to  say,  to  every  person  authorised  and  qualified  to  vote 
under  the  constitution  of  Maryland;  that  the  primary  school 
law  and  its  supplements,  in  this  respect  are  unconstitutional, 
because  they  deprive  the  people  at  large  of  the  school  districts, 
of  any  voice  in  the  election  and  control  of  the  schools,  and 
vest  the  power  solely  in  the  taxable  inhabitants,  or  "free  white 
male  citizens,  residents  of  and  taxable  in  said  districts 
respectively." 

Contravening  and  annulling  in  the  judgment  of  the  appellee, 
the  act  of  1809,  which  secures  the  right  of  suffrage  to  every 
"free  white  male  citizen  above  twenty-one  years  of  age,"  and 
having  resided  "twelve  months  in  the  State,  and  six  months 
in  the  county." 


OF  MARYLAND.  285 


Burgess  vs.  Pue. — 1844. 


By  the  operation  of  these  laws,  the  right  of  suffrage  and 
legislation  on  the  most  valuable  and  momentous  subject,  the 
instruction  of  our  own  offspring,  is  taken  away  from  the  legis- 
lature, which  represents  and  sympathises  with  every  citizen, 
and  is  responsible  for  the  faithful  discharge  of  its  duty  to  its 
constituency,  and  placed  in  the  hands  of  a  privileged  and  ir- 
responsible majority,  to  be  used  without  check  or  control. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

An  attempt  to  collect,  by  a  seizure  and  sale  of  his  property, 
the  taxes  imposed  upon  the  defendant,  in  and  by  the  taxable 
inhabitants  of  school  district,  No.  30,  in  Howard  district,  gave 
rise  to  this  suit. 

This  tax,  as  it  appears  by  the  case  stated,  was  imposed  at 
a  meeting  which  took  place  on  the  29th  July  1843,  and  was 
a  tax  of  sixteen  cents  on  every  hundred  dollars  of  taxable 
property  within  the  district,  in  order  to  defray  the  necessary 
expenses  of  the  district  "during  the  past,  and  for  the  current 
year."  If  the  meeting  and  the  proceedings,  which  took  place 
on  that  day,  were  authorised  by  law,  then  the  defendant  in 
error  cannot  sustain  the  action  of  replevin,  which  was  brought 
by  him.  and  the  proceedings  in  which  are  now  before  us. 

It  is  designed  to  notice  the  points  which  were  raised  in  the 
court  below,  and  in  the  order  in  which  they  were  introduced 
into  that  court. 

The  first  objection  to  this  law,  that  it  is  unconstitutional, 
has  been  already  over-ruled  by  this  court,  in  the  case  between 
these  same  parties,  decided  at  June  term  1844. 

One  ground,  on  which  the  defendant  in  error  insisted,  that 
the  tax  could  not  legitimately  be  demanded,  was,  that  the 
trustees,  clerk,  and  others,  at  the  preceding  annual  meeting,  in 
July  1842,  were  not  elected  by  ballot,  but  viva  voce  ;  and  the 
clerk  did  not  bond.  Because  of  this,  it  is  contended  that 
the  said  district  is  disorganised,  and  the  power  of  the  taxables 
suspended. 

It  appears  by  the  case  stated,  that  a  notice  of  the  meeting, 
which  was  to  take  place  July  15th,  1843,  "for  the  purposes  of 


286  CASES  IN  THE  COURT  OK  APPEALS 


Burgess  vs.  Pue. — 1844. 


electing  officers  and  voting  a  tax  on  the  assessable  property  of 
the  district,  for  the  support  of  the  school  for  the  ensuing  year," 
was  signed  "George  L.  Stockett,  clerk."  The  meeting  took 
place,  and  to  the  proceedings  of  that  meeting,  in  the  election 
of  officers  for  the  ensuing  year,  no  objection  is  taken  ;  but  the 
incurable  error  consisted,  in  the  election  of  those,  of  the  pre- 
vious year. 

The  minutes  of  the  proceedings  of  that  meeting  which 
constitute  a  part  of  the  case  stated,  tell  us,  that  George  L. 
Stockett,  was  nominated,  and  elected  unanimously:  and  surely, 
from  this  entry  we  are  not  bound  to  infer,  that  he  was  elected 
illegally?  This  entry,  at  all  events,  must  be  one  of  "the  mat- 
ters of  form,"  which  the  Jict  of  1828,  ch.  69,  requires  us  to 
disregard. 

According  to  the  reasoning  of  the  counsel  for  the  defen- 
dant in  error,  the  election  must  be  pronounced  to  be  void, 
unless  the  minutes  state  every  thing  to  have  been  done,  which 
the  law  requires  to  be  done.  The  law  says,  that  the  election 
must  be  by  ballot ;  and  therefore,  and  in  order  to  be  valid,  it  is 
not  only  necessary  that  the  election  should  be  by  ballot,  but  the 
omission  to  state  on  the  minutes  that  it  was  by  ballot,  vitiates 
an  election,  to  which  no  other  exception  can  be  taken.  It  will 
not  be  denied,  that  in  some  of  the  old  cases,  to  which  we  are 
referred  by  the  counsel,  expressions  may  be  found  attributed  to 
the  court,  which  would  seem  to  justify  this  reasoning.  Those 
expressions  are  generally  to  be  found  in  cases,  where,  by  their 
own  showing,  the  acts  done  were  contrary  to  law,  and  seem 
to  have  been  used  without  reflecting,  that  as  they  might  be 
understood,  they  would  take  from  us  much  valuable  law. 

The  election  does  not  appear  to  have  been  by  ballot ;  and 
moreover,  it  does  not  appear  that  the  clerk  gave  bond,  as  the 
act  of  1825  requires.  Now  these  objections,  which  are  de- 
signed to  take  from  the  clerk  his  office,  are  urged  in  a  suit 
to  which  the  clerk  is  no  party.  See  7  Sargeant  fy  Rawle.,  392. 
Besides,  the  act  of  1825,  ch.  162,  sect.  9,  provides,  that 
the  clerks,  &c.,  of  each  district,  shall  hold  their  office  until 
the  next  annual  meeting,  and  a  new  election  shall  be  made. 


OF  MARYLAND.  287 


Burgess  vs.  Pue. — 1844. 


Now,  we  find,  that  George  L.  Stockett  was  in  the  office,  act- 
ing as  clerk,  in  July  1842 ;  and  are  we,  in  this  suit,  to  which  he 
was  no  party,  and  grounding  our  opinion  upon  this  statement,  to 
determine,  that  he  was  not  legally  in  the  office,  the  duties  of 
which  he  was  discharging? 

In  the  case  of  corporations  it  is  considered,  that  the  record- 
ing of  an  official  bond  is  not  essential  to  its  validity,  unless  it 
be  so  expressly  declared.  A  vote  or  resolution  appointing  an 
agent,  need  not  be  entered  on  the  minutes,  but  may  be  inferred 
from  the  permission,  or  acceptance  of  his  services.  See  Angel 
fy  Jlmes  on  Corporations,  157,  and  the  case  there  referred  to, 
of  Dunn,  vs.  Saint  Andrews  Church,  14  Johnson's  Reports,  118. 
The  authority  continues,  "we  need  hardly  add,  that  if  in  such 
case  the  agent  is  held  to  be  duly  appointed,  as  between  the 
corporation  and  himself,  a  fortiori,  he  would  be,  as  between 
the  corporation  and  third  persons." 

"Persons  acting  publicly,  as  officers  of  a  corporation,  are 
presumed  to  be  rightfully  in  office;  acts  done  by  a  corporation, 
which  presuppose  the  existence  of  other  acts,  to  make  them 
legally  operative,  are  presumptive  proofs  of  the  latter;  and 
although  the  charter  or  act  of  incorporation  prescribes  the 
mode  in  which  its  officers  shall  be  elected,  and  an  election 
contrary  to  it,  would  unquestionably  be  voidable,  yet  if  the  offi- 
cer has  come  in  under  color  of  right,  and  not  in  open  contempt 
of  all  rights  whatever,  he  is  an  officer  de  facto,  #c."  See  Jlngel 
and  Ames,  158,  159. 

An  act  of  Assembly,  confers  upon  the  mayor  and  aldermen 
of  the  city  of  Annapolis,  authority  to  take  the  acknowledg- 
ment of  deeds,  which  are  designed  to  transfer  the  title  to  laud 
from  the  grantor  to  the  grantee.  Surely  a  party  who  claims 
under  a  deed  so  acknowledged,  is  not,  in  order  to  make  the 
deed  evidence,  to  prove  that  the  mayor  was  what  he  professed 
to  be,  that  is,  was  duly  elected  to  the  office. 

It  seems  however  to  be  thought,  that  these  trustees,  clerks, 
&c.,  are  to  be  regarded  as  special  agents,  deriving  from  the 
law  special  authority,  and  their  acts,  in  order  to  be  valid,  must 
be  proved  to  be,  in  every  respect,  according  to  the  strict  letter 


288  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

of  the  law;  and  that  the  law,  with  respect  to  the  acts,  and  the 
inferences  from  the  acts  of  corporations,  are  not  applicable  to 
them  and  their  actings.  The  correctness  of  all  such  notions 
may  be  questioned.  In  the  case  of  the  inhabitants  of  the 
fourth  school  district,  in  Rumford,  vs.  Wood,  13  Mass.  Re- 
ports, 193,  chief  justice  Parker  in  delivering  the  opinion 
of  the  court,  admits,  that  they,  (the  school  districts,)  are  not 
bodies  politic  or  corporate,  with  the  general  powers  of  corpora- 
tions; and  he  tells  us  this  may  be  said  of  towns  and  other  mu- 
nicipal societies.  He  then  proceeds:  "they  may  be  considered 
under  our  institutions  as  quasi  corporations,  with  limited  pow- 
ers; co-extensive  with  the  duties  imposed  upon  them  by  stat- 
ute or  usage,"  and  he  is  brought  to  the  conclusion,  that  in 
construing  their  acts,  a  liberal  view  should  be  had  to  the  end 
intended  to  be  effected.  See,  also,  Angel  andJlmes  on  Corpo- 
rations, p.  18. 

These  authorities,  in  connection  with  the  act  of  1828,  ch. 
169,  will,  it  is  believed,  justify  the  court  in  over-ruling  this 
and  other  points,  which  were  raised  by  the  defendant's  counsel, 
in  the  court  below. 

It  is  also  objected,  that  the  notice  given  by  the  clerk,  de- 
clared the  object  of  the  meeting  to  be,  "for  the  purpose  of 
electing  officers  and  voting  a  tax,  &c.,  for  the  support  of  the 
school  for  the  ensuing  year."  To  this  notice  the  objection 
does  not  apply;  but  it  is  said,  that  the  tax  voted,  was  to  "de- 
fray the  expenses  of  the  district,  during  the  past  and  for  the 
current  year,  such  being  the  language  used  in  voting  the  tax." 

What  are  the  powers  of  these  people,  when  assembled  in 
district  meeting,  in  regard  to  voting  taxes  ?  "To  vote  a  tax  on 
the  resident  inhabitants  of  each  district,  as  they  or  a  majority 
of  such  of  them  as  may  be  present,  as  aforesaid,  shall  deem 
sufficient  to  purchase  a  suitable  scite  for  the  school  house,  and 
to  build,  keep  in  repair,  and  furnish  such  school  house  with 
necessary  fuel,  books,  stationary,  and  appendages ;  and  to  re- 
peal, alter,  regulate  arid  modify  all  such  proceedings,  or  any 
part  thereof,  from  time  to  time,  as  occasion  may  require." 
And  surely,  in  the  discharge  of  these  duties,  it  may  be  neces- 


OF  MARYLAND.  289 


Burgess  vs.  Puo. — 1844. 


sary  to  raise  funds,  in  order  to  defray  expenses  already  incur- 
red, and  (as  required  by  another  clause,)  to  "pay  the  sala- 
ries of  such  teachers."  The  officer  must  give  notice,  and  did 
give  notice,  ot  the  time  and  place  of  meeting.  What  follows, 
cannot  make  the  notice  illegal,  although  it  had  not  stated  that 
all  the  business  which  was  actually  done,  (such  as  acting  upon 
claims,  directing  the  payment  of  them,  &c.,)  would  be  done. 
It  may  also  be  observed,  that  between  the  notice  and  the  vote, 
there  is  not  that  difference  which  is  suggested.  The  tax  to  be 
voted,  is  to  pay  what  is  then  due,  and  what  it  is  known  will 
be  due  in  the  course  of  the  year:  and  provision  for  the  payment 
of  what  is  already  due,  and  what  in  the  course  of  the  year  is 
to  become  due,  is  made  by  voting  a  tax  for  the  support  of  the 
school;  that  is,  to  pay  debts  which,  no  matter  when  contracted, 
are  payable  in  the  course  of  the  coming  year. 

Perhaps  it  would  be  desirable  to  ascertain,  at  the  begininng 
of  the  year,  the  amount  of  expense  to  be  incurred  in  the  course 
of  that  year,  and  provide  for  the  prompt  payment  of  it;  but 
then,  this  is  impossible,  as  it  cannot  be  known  what  will  be 
the  amount  of  expenditures  for  repairs,  books,  fuel,  &c.  They 
must  sometimes  purchase  upon  credit,  and  in  order  to  pay  for 
what  is  thus  purchased,  it  is  necessary  to  vote  a  tax,  which  is 
to  defray  expenses  during  the  past,  as  well  as  the  ensuing 
year ;  and  this  may,  with  strict  propriety,  be  said  to  provide 
for  the  school  for  the  ensuing  year.  This  too,  is  an  answer  to 
the  fourth  objection,  that  the  tax  is  retrospective,  and  not  pro- 
spective. 

We  perceive  nothing  which  warrants  the  objection,  that  the 
tax  was  not  voted  at  the  annual  meeting  of  the  taxables;  nor 
that  two  taxes  have  been  laid  in  the  same  year  for  the  same 
purpose;  nor  does  there  seem  to  be  any  foundation  for  the  ob- 
jection, that  the  sum  voted  as  the  tax,  was  not  raised  in  due 
proportion  on  all  the  taxable  property. 

As  to  the  eighth  objection,  it  appears  that  the  seizure  there 
spoken  of,  (if  in  this  case  it  can  be  noticed  at  all,)  was  ille- 
gal, and  for  that  tax  he  is  not  responsible.     It  can  furnish  no 
37        v.2 


290  CASES  IN  THE  COURT  OF  APPEALS 

Burgess  vs.  Pue. — 1844. 

objection  to  the  vote,  that  a  tax  of  sixteen  cents,  be  laid  in 
ihe  year  1843. 

The  ninth  objection  assumes,  that  the  collector  is  to  be  pre- 
sumed not  to  be  qualified,  unless  there  be  express  proof  of  his 
qualification.  He  is  an  officer  de  facto;  but  if  not  de  jure  also, 
he  is  not  in  office.  The  defendant,  himself,  has  sworn,  (see 
affidavit  ante,)  that  the  very  property  for  which  this  suit  was 
brought,  was  seized  by  the  collector,  Thomas  Burgess,  for  the 
school  taxes,  for  the  primary  school  district  No.  30,  of  said  dis- 
trict. 

Of  the  last  of  the  objections,  which  appear  to  have  been 
relied  on  in  the  court  below,  notice  has  already  been  taken, 
and  according  to  our  view  of  such  objections,  this  cannot 
be  sustained.  Besides  this,  it  seems  to  have  no  foundation  in 
law.  The  charter  does  not  forbid  the  appointment  of  one 
of  the  trustees  to  be  the  clerk.  It  is  true,  that  at  the  meeting 
in  August  1840,  it  was  voted,  that  in  the  opinion  of  the  then 
meeting,  it  was  incompatible  in  the  trustees  to  hold  another 
office,  and  perhaps,  at  some  meeting  an  opinion  was  express- 
ed, that  the  offices  of  trustee  and  clerk  are  incompatible;  but 
these  votes  and  expressions  of  opinion,  do  not  disqualify  any 
man. 

The  objections,  all  of  them,  assume,  either  that  the  legisla- 
ture had  no  right  to  delegate  to  those  appointed  to  exercise 
them,  the  powers  given  to  them  by  the  act  of  1825,  or,  that 
the  individuals  to  whom  those  powers  have  been  delegated, 
must  not  only  conform  strictly  to  the  provisions  of  the  law 
under  which  they  act,  but  that  the  minutes  of  their  proceed- 
ings must  show  all  the  facts  which  are  necessary  to  give  them 
jurisdiction.  "It  is  believed,  that  this  would  not  be  correct, 
even  although  the  law  of  1828  never  had  been  enacted. 
But  surely  the  legislature  had  the  power  to  pass  that  law,  and 
one  object  of  it  seems  to  have  been,  to  require  courts,  in  judg- 
ing of  their  actings  and  doings,  to  judge  them  by  other  rules 
than  those  which  are  sometimes  adopted,  in  determining  upon 
the  validity  of  the  acts  of  special  agents,  who,  by  the  nature 
and  terms  of  their  authority,  can  do  nothing  which  they  are 


OF  MARYLAND.  291 


Hoyc  vs.  Johnston. — 1844. 


not  expressly  authorized  to  do.  Much  is  left  to  the  discretion 
and  judgment  of  the  individuals,  who  are  to  execute  the  law 
of  1825.  In  their  judgment  the  law  reposes,  and  from  the 
nature  of  the  trust,  must  repose  great  confidence;  and  it  will 
presume  every  thing  which  it  requires  to  be  done  by  them, 
to  be  rightly  done,  until  the  person,  who  would  impeach  their 
conduct,  can  furnish  legal  and  satisfactory  evidence,  that  they 
have  done  acts  not  necessary  to  be  done,  in  exercising  the 
powers  and  discharging  the  duties  which  the  law  requires  of 
them. 

But  if  for  any  or  all  of  the  reasons,  which  have  been  no- 
ticed, the  proceedings  of  the  clerk  and  other  officers  were  to 
be  considered  illegal  and  void,  still,  it  would  be  necessary  to 
reverse  the  judgment,  and  order  a  writ  of  procedendo ;  because, 
the  case  stated,  (whatever  might  have  been  intended  by  the 
parties,)  does  not  authorise  the  court  to  give  judgment,  either 
for  plaintiff  or  defendant. 

Of  course,  this  court  can  give  no  judgment  upon  the  state- 
ment, but  reverse  the  judgment,  with  costs,  and  order  a  proce- 
dendo. 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 


JOHN  HOYE  vs.  EDWARD  JOHNSTON. — December,  1844. 

A  second  patent  for  the  same  land  will  not  be  granted,  according  to  the  rules 
of  the  land  office,  until  the  first  be  vacated. 

H.,  on  the  5th  September  1839,  obtained  a  warrant  of  re-survey,  to  affect  con- 
tiguous vacancy  in  Allegany  county.  On  the  19th  May,  he  made  a  survey  ; 
on  the  31st  July,  returned  his  certificate  into  the  land  office,  and  on  the 
18th  February  1841 ,  paid  the  composition  money.  On  the  29th  June  1840, 
J.  obtained  a  special  warrant ;  on  the  llth  July,  executed  his  survey;  on 
the  24th,  paid  the  composition  money,  and  on  the  27th  January  1841,  ob- 
tained a  patent  for  his  survey.  This  done,  he  successfully  caveated  the 
application  of  H.,  for  a  patent  on  his  survey.  It  appeared  that  H.  was  seized 
of  the  tract  which  his  warrant  was  issued  to  re-survey ;  had  made  his  sur- 
vey before  J.  obtained  his  special  warrant,  and  paid  his  composition  money 
in  time ;  his  title  relates  to  his  survey  of  the  19th  May  1840,  and  was  prior 
in  point  of  equity  to  J's  title. 


292  CASES  IN  THE  COURT  OF  APPEALS 

Hoye  vs.  Johnston. — 1844. 

An  equitable  title  to  vacant  lands,  will,  in  equity,  prevail  against  a  legal  title, 
when  the  party  possessed  of  the  legal  title,  has  procured  it  by  means  of 
fraudulent  representations  to  the  officers  of  the  land  office.  Upon  a  bill,  in 
such  case,  the  patent  will  be  vacated  in  favor  of  the  equitable  title,  or  the 
patentee  decreed  to  convey  the  land  to  the  injured  party. 

Under  the  act  of  1822,  ch.  128,  sec.  3,  the  composition  money  for  vacant  land 
in  Allegany  county,  may  be  paid  within  twelve  months  after  the  date  of 
the  certificate  of  survey. 

By  the  terms  of  a  special  warrant,  a  party  is  forbidden  from  running  his  lines 
within  the  lines  of  any  former  or  more  ancient  survey. 

A  party  who  sues  out  of  the  land  office,  a  general  or  special  warrant  of  survey, 
to  take  up  vacant  lands,  has  an  opportunity  to  know,  and  is  presumed  to 
know,  that  before  he  obtained  his  warrant,  another  warrant  for  the  same 
land,  if  the  fact  be  so,  had  actually  been  located. 

When  a  party  has  presumed  or  actual  notice  of  a  location  made,  and  pre- 
vails upon  a  public  surveyor  to  violate  the  instructions  under  which  he 
was  acting,  and  to  misrepresent  to  other  officers  of  the  State,  who  were 
to  judge  of  the  fairness  and  regularity  of  such  surveyor's  proceedings,  that 
in  executing  a  warrant,  he  had  conformed  to  the  rules  of  the  land  office,  and 
had  so  enabled  a  party  to  obtain  a  patent  for  land,  this  is  a  fraud  affecting 
such  patent. 

Upon  a  bill  in  equity,  filed  by  the  holder  of  an  equitable  title  to  vacant  land 
under  the  State,  against  the  patentee  of  the  same  land,  to  vacate  the  pa- 
tent as  fraudulently  obtained,  the  State  need  not  be  made  a  party.  Ample 
relief  may  be  had  without  the  State,  who  has  no  interest  in  such  a  case. 

APPEAL  from  the  Court  of  Chancery. 

The  bill  in  this  cause  was  filed  on  the  5th  July  1841,  by  the 
appellant  against  the  appellee,  and  alleged,  that  John  Hoye  of 
Mlegany  county,  being  seized  of  a  tract  of  land  in  said  county, 
called  Flavia,  held  under  a  patent  from  the  State,  bearing  date 
on  or  about  the  7th  September  1838,  and  one  other  tract  called 
Rotunda,  contiguous  to  which  your  orator  supposed  there  was 
some  vacant  land,  he  did  on  or  about  the  5th  September  1839, 
sue  out  a  warrant  to  re-survey  his  aforesaid  tracts,  with  liberty 
to  include  the  contiguous  vacant  lands.  That  said  warrnrit 
was  shortly  after  placed  in  the  hands  of  the  surveyor  of  the 
said  county  for  execution,  and  was  by  him  on  or  about  the  19th 
May  1840,  executed,  and  a  certificate  of  the  re-survey  made 
on  behalf  of  your  orator  was  returned  into  the  aforesaid  land 
office,  whereby  it  appears  that  your  orator's  original  tract  called 
Flavia,  contained  the  quantity  of  354^  acres,  and  that  the 


OK  MARYLAND.  V293 


Hoye  vs.  Johnston. — 1844. 


surveyor  had  included  the  quantity  of  162^  acres  vacant  land, 
and  that  the  whole  was  reduced  into  one  tract  by  the  name  of 
".P/ctna  Resurveyed,"  as  by  reference  to  the  said  certificate 
now  remaining  in  the  land  office,  will  more  fully  appear ;  and 
your  orator  herewith  files  a  certified  copy  of  the  same  as  a  part 
of  this,  his  bill  of  complaint;  that  he  duly  compounded  on  his 
aforesaid  certificate  of  re-survey,  and  thereby  entitled  himself 
to  demand  a  patent  therefor,  and  but  for  the  acts  and  doings  of 
the  defendant,  hereinafter  named,  would  have  obtained  such 
patent  in  due  season.  But  now  so  it  is,  that  a  certain  Edward 
Johnston,  contriving  and  intending  to  defraud  your  orator  of 
the  benefit  of  his  aforesaid  warrant  of  re-survey,  and  to  appro- 
priate the  said  vacancy  to  himself,  sued  out  of  the  said  land 
office,  on  or  about  the  29th  June  1840,  a  special  warrant  for 
one  hundred  acres,  to  affect  the  aforesaid  vacancy  which  had 
been  included,  as  aforesaid,  in  your  orator's  re-survey,  and 
on  or  about  the  14th  July  1840,  laid  the  same  upon  the  said 
vacancy,  and  caused  a  certificate  thereof  to  be  returned  to 
the  said  land  office,  by  the  name  of  "Fort  Meigs"  That  said 
Johnston  paid  the  composition  money  and  obtained  a  patent 
therefor,  on  or  about  the  27th  January  1841.  And  your  orator 
files  herewith  an  authenticated  copy  of  the  said  certificate,  and 
prays  that  the  same  may  be  taken  as  part  of  his  bill.  And  that 
the  said  Edward  Johnston  having  thus  obtained  from  the  State  a 
grant  of  the  vacant  land  which  was  designed  to  be  affected,  and 
was  in  truth  bound  by  your  orator's  aforesaid  warrant  of  re-sur- 
vey, and  the  actual  execution  thereof,  prior  to  the  date  of  the  said 
Johnston's  warrant,  the  latter,  nevertheless,  having,  as  aforesaid, 
procured  the  grant,  entered  a  caveat  against  the  issuing  of  a 
patent  upon  your  orator's  certificate,  which  caveat  the  Chan- 
cellor, as  judge  of  the  land  office,  by  an  order  dated  the  10th 
April  1841,  ruled  good,  as  will  appear  by  the  aforesaid  certifi- 
cates, and  other,  the  proceedings  in  the  said  land  office,  to  all 
of  which  your  orator  prays  leave  to  refer  as  parts  of  this  bill. 
That  the  said  Edward  Johnston,  whom  your  orator  prays  may 
be  made  a  defendant  to  this  bill,  at  the  date  of  the  warrant,  so 
as  aforesaid  sued  out  by  him,  and  at  the  time  of  its  execution. 


294:  CASES  IN  THE  COURT  OK  APPEALS 

Hoye  vs.  Johnston. — 1844. 

as  aforesaid,  on  the  14th  July  1840,  had  full  and  direct  know- 
ledge that  your  orator  had  previously  surveyed  ami  included  the 
land  now  in  dispute,  in  his  tract  called  "Flavia  Resurveyed;" 
and  that  he,  the  said  Johnston,  therefore  purchased,  with  no- 
tice of  your  orator's  prior  equitable  title  and  in  fraud  thereof, 
and  your  orator  herewith  files  the  copy  of  a  statement  of  facts 
agreed  and  admitted  by  the  parties  upon  the  trial  of  the  caveat 
in  the  land  office,  whereby  it  clearly  appears,  that  the  said 
Johnston  had  full  and  explicit  notice  of  the  equitable  rights  of 
your  orator,  at  the  time  he  took  out  and  executed  his  said  war- 
rant; and  your  orator  prays  that  the  said  copy  may  be  taken 
as  a  part  of  his  bill.  And  your  orator  is  advised,  that  though 
your  honor  as  judge  of  the  land  office,  and  in  conformity  with 
the  ancient  rules  and  usages  of  that  office,  ruled  the  aforesaid 
caveat  against  his  before  mentioned  certificate  of  re-survey 
good,  yet  that  judgment  does  not  preclude  him  from  asking 
for  the  equitable  interposition  of  this  court,  and  that,  upon  es- 
tablishing the  truth  of  his  aforesaid  allegations,  he  will  be  en- 
titled to  a  decree  vacating  the  patent,  so  as  aforesaid,  issued  to 
the  said  Edward  Johnston,  or  declaring  that  he  shall  stand 
seized  of  the  land  so  granted,  as  trustee  for  your  orator,  and 
requiring  him  to  convey  the  same  to  your  orator.  And  your 
orator  alleges,  that  he  was  utterly  ignorant  of  the  existence  of 
the  said  warrant,  and  of  the  execution  thereof  by  the  said 
Johnston,  until  after  the  patent  had  been  granted  to  him,  the 
said  Johnston,  as  aforesaid,  and  that  the  same  operated  as  a 
surprise  upon  your  orator,  but  that  all  the  acts  and  proceed- 
ings of  the  said  Johnston  were  had  with  full  notice  of  the 
existence  of  your  orator's  warrant,  and  of  its  execution.  In 
consideration,  &c. 

With  this  bill  the  various  exhibits,  therein  referred  to,  were 
filed. 

The  defendant,  Edward  Johnston,  by  his  answer  admitted, 
that  on  the  29th  June  1840,  he  sued  out  of  the  Western  Shore 
Land  Office  of  Maryland,  a  special  warrant  for  one  hundred 
acres,  to  affect  a  certain  vacancy  which  he  had  previously  dis- 
covered, and  that  in  pursuance  of  said  warrant,  a  survey  was 


OF  MARYLAND.  295 


Hoyo  vs.  Johnston. — 1844. 


made,  and  the  said  vacancy  was  found  to  contain  two  hundred 
and  forty-nine  acres  and  three-eighths,  and  called  "Fort 
Meigs,"  according  to  the  certificate  thereof,  returned  into  the 
said  land  office.  He  further  admits,  that  at  the  time  when 
said  survey  was  made,  he  was  informed  by  one  of  the  deputy 
surveyors  of  Allegany  county,  that  the  principal  part,  or  per- 
haps the  whole  of  said  vacancy,  had  already  been  included  in 
a  survey  which  had  been  a  short  time  previously  made  out  for 
the  complainant,  called  "Flavia  Resurveyed."  That  upon  re- 
ceiving this  information,  he  did  not  think  proper  to  suspend  the 
further  execution  of  his  warrant  aforesaid,  but  caused  the  same 
to  be  completed  and  a  certificate  thereof  returned,  as  aforesaid, 
believing  that  he  was  fully  entitled  to  said  vacancy.  That 
having  inspected  the  complainant's  pretensions  thereto,  he  saw, 
as  alleged  in  complainant's  bill  of  complaint,  that  his  claim 
was  founded  upon  a  warrant  of  re-survey,  which  had  been  sued 
out  upon  the  tract  of  land  called  "Flavia,"  which  tract,  if  it 
can  be  assumed  to  exist  at  all,  this  defendant  knew  was  not 
contiguous  to  said  vacancy.  That  in  order  to  ascertain  the 
vacancy,  this  defendant  had  caused  the  elder  adjoining  tracts 
of  land  to  be  run  out,  of  which  "South  Bar,"  patented  to 
Gen.  James  Swann  on  the  the  2nd  March  1805,  was  one. 
That  Flavia  was  also  run  out,  but  that  it  was  found  to  lie  en- 
tirely within  the  lines  of  "South  Bar"  and  that  being  a  much 
younger  tract  than"5W£A  Bar,"  it  having  only  been  patented 
on  the  7th  September  1838,  this  defendant  regarded  such  tract 
as  a  non-entity,  and  looked  upon  the  patent  therefor,  as  a  nul- 
lity. To  show  that  Flavia  does  lie  entirely  within  the  lines  of 
"South  Bar,"  this  defendant  has  caused  a  plat  to  be  made  out 
by  the  surveyor  of  Allegany  county,  which  he  herewith  ex- 
hibits. Now  this  defendant  is  advised,  that  if  at  the  hearing 
of  this  cause  it  should  be  assumed,  that  such  patent  is  ope- 
rative, and  that  Flavia  has  a  potential  existence,  then  upon  its 
appearing,  as  shown  by  said  plat,  that  Flavia  is  surrounded  by 
the  outlines  of  South  Bar,  and  consequently  cut  off  from  the 
vacancy  contained  in  "Fort  Meigs"  and  "Flavia  Resurveyed," 
this  defendant's  title  to  the  same,  he  being  the  patentee  of 


296  CASES  IN  THE  COURT  OF  APPEALS 

Hoye  us.  Johnston. — 1844. 

"Fort  Meigs,"  must  prevail  against  the  pretensions  of  the 
complainant.  This  defendant  further  admits,  that  after  he  had 
obtained  a  patent  upon  his  certificate  for  "Fort  Meigs"  he 
caveated  the  complainant's  certificate  of  "Flavia  Resurveyed." 
That  at  the  hearing  of  said  caveat,  he  relied  chiefly  in  argument 
upon  the  fact,  that  the  vacancy  in  controversy  was  not  con- 
tiguous to  the  complainant's  tract,  "JFYawa,"  and  that  after  a 
full  hearing  of  both  parties,  his  honor,  the  Chancellor,  as  judge 
of  the  land  office,  ruled  his  caveat  good.  That  as  such  judge, 
he  decides  in  all  cases  brought  before  him,  as  by  law  he  is 
bound  to  do,  according  to  equity  and  good  conscience,  and 
agreeably  to  the  principles  established  in  the  high  court  of 
Chancery,  as  if  the  matter  were  brought  before  him  by  a  bill 
in  chancery?  This  defendant,  therefore,  claims  the  decision 
which  was  made  by  the  judge  of  the  land  office  in  said  caveat 
case,  as  final  and  conclusive  upon  the  question  of  right  to  said 
vacancy.  That  such  decision  is  surely  a  judgment  or  decree 
between  the  same  parties  upon  the  same  subject  matter?  And 
that  the  complainant  cannot  possibly  rid  himself  of  the  bind- 
ing and  conclusive  effect  of  such  decision,  unless  he  can  shew 
(which  is  not  pretended,)  that  such  decision  was  brought  about 
by  fraud,  accident,  or  surprise,  or  other  similar  means.  And 
this  defendant  denies  all;  and  all  manner  of  fraud  and  con- 
spiracy, with  which  he  is  charged  by  said  bill,  and  prays,  &c. 

With  this  answer  various  exhibits  were  also  filed ;  a  com- 
mission was  issued,  the  facts  established  under  which,  appear 
in  the  opinion  of  this  court. 

At  July  1842,  the  Chancellor,  (BLAND,)  dismissed  the  bill 
with  costs,  being  of  opinion,  that  the  patent  of  the  defendant. 
Edward  Johnston,  has  been  properly  obtained,  without  fraud, 
according  to  the  law  and  rules  of  the  land  office,  and  therefore, 
cannot,  upon  the  facts  shewn,  be  vacated  by  any  regular  pro- 
ceeding, much  less  by  a  bill  like  this,  to  which  the  State  is  not 
a  party. 

From  this  decree,  the  complainant  appealed  to  this  court. 

The  cause  was  submitted  to  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS,  SPENCE  and  MAGRUDER,  J.,  upon  arguments,  in 
writing. 


OF  MARYLAND.  297 


Hoye  vs.  Johnston. — 1844. 


J.  JOHNSON  for  the  appellant. 

This  case  comes  before  the  court,  upon  an  appeal  from  a 
decree  of  the  Chancellor,  passed  on  the  22d  July  1842,  dis- 
missing the  appellant's  bill,  with  costs. 

The  facts  as  charged,  admitted,  and  proved,  are  as  follows: 

The  appellant  obtained,  regularly,  a  patent  fora  tract  of  land 
in  Allegany  county  called  "Flavia"  on  the  7th  of  September 
1838;  and  on  the  5th  of  September  1839,  he  took  out  a  war- 
rant to  re-survey  the  same,  and  add  contiguous  vacancy,  which 
warrant  was  executed  on  the  19th  of  May  1840;  returned  to 
the  land  office  on  the  31st  of  July  1840;  and  the  composition 
money  paid  on  the  vacancy  and  improvements  included  in  the 
re-survey,  on  the  15th  of  February  1841. 

The  appellant's  original  contained  354^  acres. 

The  vacancy  included  in  re-survey 


Making  517  acres. 

On  the  29th  of  June  1840,  the  appellee  took  out  a  special 
warrant  for  one  hundred  acres,  to  affect  the  same  vacancy, 
which  he  caused  to  be  executed  on  the  14th  of  July  1840,  and 
returned  a  certificate  to  the  land  office  on  the  24th  July  1840; 
paid  the  composition  on  the  same  day,  and  on  the  27th  Janu- 
ary 1841,  obtained  a  patent,  calling  the  tract  "Fort  Meigs." 

And  on  the  day  of  the  date  of  his  patent,  to  wit,  the  27th 
of  January  1841,  the  appellee  filed  a  caveat  against  the  appel- 
lant's certificate,  which  the  Chancellor,  as  judge  of  the  land 
office,  on  the  10th  of  April  1841,  ruled  good. 

The  appellant  then,  on  the  5th  July  1841,  filed  his  bill  in 
the  Court  of  Chancery,  praying  that  the  patent  which  had  been 
issued  to  the  appellee,  might  be  vacated,  and  for  general  relief, 
upon  the  ground,  as  charged  in  the  bill,  that  the  appellee, 
when  he  obtained  his  warrant  and  made  his  survey,  had  actual 
knowledge,  that  the  appellant  had  previously  included  the  same 
land  in  his  re-survey  of  "JFYam'a,"  and  that,  therefore,  the  ap- 
pellee having  purchased  the  land,  with  notice  of  the  prior 
equitable  title  of  the  complainant,  was  guilty  of  a  fraud  upon 
his  rights. 

38         v.2 


298  CASES  IN  THE  COURT  OF  APPEALS 

Hoye  vs.  Johnston. — 1844. 

The  defendant's  answer  admits,  that  at  the  time  of  his  sur- 
vey, to  wit,  on  the  14th  of  Juty  1840,  he  was  informed,  that 
the  vacancy  had  been  included  in  the  prior  survey  of  the  com- 
plainant; but  that  notwithstanding  such  notice  of  the  com- 
plainant's prior  survey,  he  thought  fit  to  proceed  with  the  exe- 
cution of  his  warrant,  because,  as  alleged  in  the  answer,  the 
defendant  had  ascertained,  that  the  complainant's  original  tract 
"P/awa,"  was  embraced  within  the  lines  of  an  elder  tract, 
called  "South  Ear,"  patented  to  Gen.  Swann  on  the  2nd 
of  March  1805.  An  agreement,  signed  by  parties  properly 
authorised,  shews  conclusively  that  the  appellee,  when  he 
made  his  survey,  had  actual  notice,  that  the  land  in  contro- 
versy had  been,  prior  thereto,  included  in  the  appellant's  re- 
survey  upon  his  tract  called  ".FYaitta." 

It  also  appears,  that  "F/cria,"  the  appellant's  original,  con- 
sists in  part,  of  lots  distributed  to  soldiers  of  the  Continental 
army,  in  Jlllegany  county,  which  lots  were  not  alienated  by  the 
soldiers,  to  whom  they  were  distributed,  fifty  years  past. 

Under  an  order  of  the  Chancellor,  passed  on  the  8th  of 
February  1842,  a  survey  was  made,  and  the  plat  shows,  that 
the  12th  line  of  the  appellant's  original,  touches  the  vacancy. 

The  Chancellor's  decree,  dismissing  the  bill,  it  is  insisted, 
is  erroneous,  for  the  following  reasons: 

1.  That  the  appellant's  proceedings  upon  his  warrant  of  re- 
survey,  were  all  in  strict  accordance  with  the  laws  and  regu- 
lations of  the  land  office. 

The  warrant  is  dated  5th  September  1839,  and  the  re-sur- 
vey was  made,  and  the  certificate  returned  to  the  land  office 
on  the  31st  July  1840,  and  of  course,  within  eighteen  months 
of  the  date  of  the  warrant.  L.  H.  As.  273,  325,  466. 
Act  1795,  chap.  88,  sec.  7. 

The  appellee  does  not  deny,  that  the  survey  was  made,  and 
the  certificate  returned  in  time;  but  he  says,  the  composition 
money  was  not  paid,  until  after  the  time  limited  by  law  for  that 
purpose. 

But  the  certificate  of  the  re-survey  is  dated  on  the  19th  of 
May  1840,  and  the  composition  paid  on  the  15th  of  February 


OF  MARYLAND.  299 


fioyo  vs.  Johnston. — 1844. 


1841,  within  twelve  months  from  the  date  of  the  certificate, 
which,  so  far  as  Allegany  county  is  concerned,  is  in  time,  by 
the  3rd  section  of  the  act  of  1822,  chap.  128,  which  declares, 
"that  all  surveys  of  land,  made  after  the  passage  of  this  act, 
in  Jlllegany  county,  and  returned  to  the  Land  Office  of  the 
Western  Shore,  and  which  shall  not  be  compounded  upon, 
within  twelve  months  from  the  date  of  the  certificate,  shall  be 
null  and  void ;"  thus  by  the  clearest  implication  saying,  that 
if  the  composition  money  be  paid  within  the  twelve  months 
from  the  date  of  the  certificate,  it  shall  not  be  void.  This  act, 
shortly  after  its  passage,  received  a  construction  from  the  late 
Chancellor,  who  said,  that  by  virtue  of  it,  parties  in  Allegany 
county  have  twelve  months  from  the  date  of  their  certificates 
to  pay  the  composition  money,  and  in  this  construction,  the 
present  Chancellor  expressed  his  entire  concurrence. 

The  case  then  being  free  from  this  difficulty,  the  2nd  ques- 
tion relates  to  the  equity  of  the  appellant,  to  have  the  patent, 
granted  to  the  appellee,  vacated  as  fraudulent,  because  the 
appellee,  at  the  time  he  made  his  survey  and  paid  the  caution 
money,  had  actual  notice  of  the  prior  equitable  title  of  the 
appellant. 

The  appellant's  warrant  of  re-survey,  dated  the  5th  of  Sep- 
tember 1839,  gave  him  an  equitable  interest  in  all  the  contigu- 
ous vacancy,  from  its  date.  Howard  vs.  Cromwell,  4  H.  §• 
McH.  325,  330. 

Under  such  a  warrant,  the  party  acquires  the  right  of  pre- 
emption in  all  the  adjoining  vacancy,  and  if  he  makes  his  sur- 
vey, and  pays  the  caution  money  in  two  years  from  the  date 
of  his  warrant,  he  has  a  complete  equitable  interest  in  all  the 
vacancy  included  in  his  survey.  Hammond  vs.  JVbrm,  2  H. 
$  J.  140. 

Such  being  the  established  law  of  the  land  office,  it  would 
seem  to  follow,  that  a  patent  granted  to  another,  in  contraven- 
tion of  this  law,  ought  not  to  be  allowed  to  stand  in  the  way 
of  the  party  clothed  with  such  rights. 

If  the  appellant  could  have  obtained  a  patent  upon  his  cer- 
tificate, there  can  be  no  doubt  it  would,  upon  the  doctrine  of 


300  CASES  IN  THE  COURT  OK  APPEALS 

Hoye  vs.  Johnston. — 1844. 

relation,  have  over-ridden  the  patent  granted  to  the  appellee; 
but  this  could  not  be  done,  because  it  is  an  inflexible  rule  of 
the  land  office,  that  two  patents  shall  not,  if  it  be  known,  issue 
for  the  same  land,  and  the  appellee  having  obtained  a  patent, 
though  in  fraud  of  the  rights  of  the  appellant,  that  patent  must 
be  put  out  of  the  way,  before  those  rights  can  be  perfected. 

But  this  case  does  not  stand,  nor  is  the  appellant's  claim  to 
relief,  founded  exclusively,  or  chiefly,  upon  his  superior  title, 
resting  upon  his  prior  warrant  and  certificate,  against  which  it 
might  be  urged,  that  the  greater  diligence  of  the  other  party, 
had  rightfully  deprived  him  of  these  advantages.  The  admis- 
sions of  the  answer,  and  the  agreement  referred  to,  show  that 
the  appellee,  when  he  made  his  survey,  had  actual  notice,  that 
the  land  in  dispute,  was  included  in  the  appellant's  elder 
survey. 

The  appellee  then,  stands  in  the  predicament  of  a  purchaser, 
not  with  constructive  notice  merely,  but  actual  notice  of  the 
prior  equitable  title  of  another,  and  consequently,  his  title  will 
be  made  subservient  to  the  title  of  the  latter.  A  court  of 
equity  will  consider  such  a  purchaser,  as  a  trustee  for  the  bene- 
fit of  the  party  whose  rights  he  has  thus  sought  to  defraud  or 
defeat.  1  Story  Eq.  383,  384,  sec.  394.  Murray  vs.  Bailout, 
1  John.  Ch.  Rep.  566,  576.  Murray  vs.  Fuister,  2  Ib.  157. 
Sagden,  526,  527.  Mead  vs.  Ld.  Orrery,  3  Atk.  235,  238. 

Taking  the  legal  estate,  after  notice  of  a  prior  right,  makes 
the  party  a  mala  fide  purchaser;  as  if  a  subsequent  purchaser 
has  notice,  at  the  time  of  his  purchase,  of  a  prior  unregistered 
conveyance,  he  will  not  be  allowed  to  avail  himself  of  his  title 
against  the  prior  conveyance.  1  Story  Eq.  385,  386,  sec.  397. 

The  appellee  supposes  that  he  will  not  be  visited  with  the 
consequences  attaching  to  a  purchaser,  with  notice  of  a  prior 
equitable  title,  because,  though  he  had  notice  at  the  time  of 
executing  his  warrant,  he  had,  as  he  says,  no  notice  at  the 
time  of  purchasing  it. 

Now  the  warrant  of  re-survey  taken  out  by  the  appellant, 
bears  date  the  5th  September  1839,  and  was  actually  executed 
on  the  19th  of  May  1840,  whilst  the  appellee's  warrant  was 


OF  MARYLAND.  301 


Hoye  vs.  Johnston. — 1844. 


not  issued  until  the  29th  of  June  1840,  more  than  nine  months 
subsequent  to  the  appellant's  warrant,  and  one  month  and  ten 
days  after  the  actual  location  of  it.  And  consequently,  when . 
he  purchased  his  warrant,  he  had  constructive  notice  of 
the  prior  warrant  and  survey  made  by  the  appellant.  1 
Bland,  326. 

But  he  does  not,  in  his  answer,  rest  his  defence  upon  this 
ground.  The  ground  taken  by  him  in  his  answer,  is,  that  upon 
learning  from  the  surveyor,  when  making  his  own  survey,  that 
the  land  he  was  about  taking  up,  as  vacancy,  had  been  includ- 
ed in  a  prior  survey  by  the  appellant,  he  nevertheless  deter- 
mined to  proceed,  because  he  had  ascertained  to  his  satisfac- 
tion, that  the  plaintiff's  original  tract,  "Flavia"  was  entirely 
included  within  the  lines  of  an  elder  tract,  called  "South  Bar" 
patented  to  Gen.  James  Swann,  on  the  2nd  of  March  1805. 

The  appellee,  therefore,  does  not  rest  his  case  upon  the 
ground  of  want  of  notice,  but  upon  the  supposed  want  of 
authority  on  the  part  of  the  appellant,  to  take  out  a  warrant 
of  re-survey.  He  says  he  had  no  such  authority,  because  his 
tract,  "Flavia"  was  included  in  the  elder  tract,  "South  Bar" 

Now  in  answer  to  this  pretension,  it  need  only  be  said,  that 
this  court,  in  the  case  of  Hoye  vs.  Lee,  December  term  1843, 
decided,  that  "South,  Bar"  had  no  existence,  for  the  reason, 
that  it  was  embraced  in  Soldiers  Lots,  which  had  not,  when 
"South  Bar"  was  taken  up,  become  liable  to  escheat. 

But  this  pretension,  that  the  appellee's  title  is  to  be  respect- 
ed, because  he  had  no  notice  of  the  appellant's  prior  warrant 
and  survey,  at  the  time  he  purchased  his  warrant,  though  he 
had  notice  before  he  executed  it,  is  unsustainable  for  another 
reason. 

When  he  went  upon  the  ground,  to  execute  his  warrant,  on 
the  14th  July  1840,  he  found  it  occupied  by  another,  under  a 
warrant  then,  undeniably,  in  full  force,  and  which  had  been 
executed  two  months  before,  to  wit,  on  the  19th  of  May  1840. 
Was  it  not  then  his  duty  to  stop,  and  ask  the  State  to  reim- 
burse him  for  the  expense  of  his  special  warrant,  by  giving 
him  authority  to  take  up  land  elsewhere,  according  to  the  rules 


302  CASES  IN  THE  COURT  OF  APPEALS 

Hoyc  vs.  Johnston. — 1844. 

of  the  land  office.  This  he  did  not  choose  to  do,  but  under- 
taking to  decide  for  himself,  that  the  appellant's  warrant  was 
invalid,  he  proceeds  with  his  survey,  and  presses  with  all  the 
rapidity  which  the  law  would  allow,  the  grant  of  a  patent  to 
himself,  that  he  might  be  in  a  position  to  frustrate  the  prior 
right  of  the  appellant,  when  he  should  call  upon  the  State  to 
comply  with  her  engagement  to  him. 

If,  when  apprised,  as  he  admits  himself  to  have  been  before 
he  made  his  survey,  of  the  clear  rights  of  the  appellant,  he 
had  suspended  his  proceedings,  no  injury  would  have  accrued 
to  any  one;  and  the  State  might  have  kept  her  contract  with 
the  appellant,  by  giving  him  a  patent  for  the  land  he  had 
contracted  to  purchase,  upon  his  complying  with  conditions, 
which  she  had  herself  prescribed,  and  with  which  conditions, 
he  did  strictly  comply.  Not  having  pursued  this  course,  he, 
the  appellee,  must  take  the  consequences  of  his  attempt,  to 
appropriate  to  himself  property,  to  which  another,  as  he  knew, 
had  a  prior  equitable  title. 

It  is  no  objection  to  the  appellant's  application,  to  a  Court 
of  Chancery  for  relief,  that  the  Chancellor  decided  against  him 
as  judge  of  the  land  office;  such  decision  may  be  reviewed  in 
Chancery  by  original  bill.  West  vs.  Jarrett,  1  H.  fy  J.  538. 
In  that  case,  a  bill  was  filed  in  equity,  after  an  adverse  de- 
cision in  the  land  office,  and  the  defendant  was  decreed  to 
convey  to  the  complainant,  the  land  included  in  the  elder  sur- 
vey of  the  latter. 

In  the  case  of  Garretson  vs.  Cole,  1  H.  fy  J.  370,  the  Court 
of  Chancery  compelled  a  party,  who  had  obtained  a  patent 
contrary  to  the  rules  of  the  land  office,  to  convey  to  another 
party  who  had  fairly  taken  up  the  same  land,  notwithstanding 
the  Chancellor,  as  judge  of  the  land  office,  had,  upon  caveat, 
decided  against  the  complainant. 

The  power  of  a  Court  of  Chancery,  to  vacate  a  grant  impro- 
perly obtained,  was  also  decided  in  the  case  of  Kelley's  Les- 
see vs.  Greenfield,  2  H.  #  McH.  140,  141,  142. 

In  the  case  of  the  State,  at  the  relation  of  Yates  vs.  Smith 
and  Purviance,  2  H '.  fy  McH.  244,  a  patent  was  vacated  by 


OF  MARYLAND.  303 


Hoyc  vs.  Johnston. — 1844. 


the  Chancellor,  because  obtained  from  the  land  office,  contrary 
to  law;  and  in  the  case  of  the  State,  at  the  relation  of  Hind- 
man  et  al.  vs.  Reed,  4  H.  $  McH.  6,  the  defendant  was  de- 
creed, to  convey  to  the  State  land  included  in  his  grant,  which 
had  been  reserved  to  the  use  of  the  proprietory  as  a  manor. 

It  is  stated  in  the  appellee's  second  point,  that  the  attorney 
general  is  a  necessary  party  to  this  suit. 

In  the  cases  of  West  vs.  Jarrett,  1  H.  fy  J.  538,  and  Gar- 
retson  vs.  Cole,  Ib.  370,  the  attorney  general  was  not  a  parly, 
and  in  the  latter  case,  which  was  a  bill  filed  after  a  patent 
granted,  the  patentee  was  compelled,  by  decree,  to  convey  to 
another,  who,  as  the  complainant  in  this  case  has  done,  had 
fairly  complied  with  the  regulations  of  the  land  office. 

It  is  insisted  therefore,  that  the  attorney  general  is  not  a 
necessary  party;  but  if  the  court  should  think  otherwise,  the 
decree  will  not  on  that  account  be  affirmed,  but  the  case  will 
be  remanded  to  the  Court  of  Chancery,  for  further  proceedings, 
that  substantial  justice  may  be  done,  by  making  the  necessary 
parties  under  the  provisions  of  the  act  of  1832,  chap.  302, 
sec.  6. 

The  appellant  respectfully  insists,  that  a  decree  should  pass, 
vacating  the  appellee's  patent,  or  that  he  should  be  compelled 
to  convey  the  land  therein  contained  to  the  appellant. 

By  T.  S.  ALEXANDER  for  the  appellee. 

The  appeal  in  this  case  is  taken  from  a  decree  of  the  Court 
of  Chancery,  dismissing  the  bill  filed  by  the  appellant  in  that 
court,  for  the  purpose  of  vacating  a  patent  which  had  been 
granted  to  the  appellee,  for  a  parcel  of  land  in  JHlegany  county, 
with  the  view  of  obtaining  a  grant  to  himself,  for  the  same 
land. 

The  appellant  claims,  under  a  warrant  of  re-survey,  issued 
on  the  5th  September  1839,  and  executed  on  the  19th  May 
1840.  His  certificate  was  returned  on  the  31st  July  1840, 
and  compounded  on  the  15th  February  1841. 

The  appellee  claims  under  a  special  warrant,  granted  him 
on  the  29th  June  1840,  and  executed  on  the  14th  July  1840, 


304  CASES  IN  THE  COURT  OF  APPEALS 

Hoye  vs.  Johnston. — 1844. 

His  certificate  was  returned  on  the  24th  July  1840.  On  the 
same  day  the  composition  was  paid  ;  and  on  the  27th  January 
1841,  he  obtained  his  patent.  It  is  conceded,  that  all  his  pro- 
ceedings were  taken  according  to  the  regular  course  of  the 
land  office.  The  only  objection  taken  to  his  title  in  equity,  is, 
that  the  appellant  had  acquired  an  equitable  title  to  the  same 
land  by  virtue  of  his  warrant  of  re-survey,  which  would  have 
been  perfected  by  the  issuing  of  a  patent  to  him,  but  for  the 
proceeding  of  the  appellee,  which  is  supposed  to  have  been 
fraudulent  as  against  the  appellant. 

The  appellee,  it  is  insisted,  is  a  purchaser  with  notice  of  the 
prior  equity  of  the  appellant. 

Express  notice  to  the  appellee  is  not  shown,  at  any  period 
anterior  to  the  day  of  executing  his  warrant.  At  the  time  of 
purchasing  out  his  warrant,  he  had  no  notice,  in  fact,  of  the 
appellant's  pretensions.  At  the  time  of  contracting  with  the 
State,  and  paying  the  first  instalment  of  the  purchase  money, 
he  was  a  purchaser  without  notice.  He  was,  therefore,  autho- 
rised to  proceed  to  perfect  his  title,  notwithstanding  subse- 
quent notice,  and  having  now  obtained  the  legal  title,  he 
may  retain  it  against  the  equitable  title  of  the  appellant.  I 
repeat,  the  admission  and  proof  of  actual  notice  applies  to  the 
time  of  survey,  and  not  to  the  time  of  suing  out  the  warrant. 

He  is  not  to  be  affected  by  constructive  notice,  upon  a  prin- 
ciple, that  every  man  is  bound  to  notice  all  the  proceedings  in 
the  land  office,  in  relation  to  land  titles.  The  land  office, 
though  an  office  of  record,  is  not  a  court  of  record ;  and  no 
rule  can  be  found  more  extensive,  than  that  all  persons  are 
bound  to  notice  the  proceedings  of  courts  of  record.  That 
they  are  not  bound  to  notice  proceedings  in  an  office  of  record 
is  clear.  The  enrolment  of  a  deed,  properly  executed  and  ac- 
knowledged, is  notice  to  all  the  world  of  a  transmission  of  the 
title.  This  is  allowed  from  the  necessity,  &c.,  of  the  thing, 
and  for  the  security  of  titles.  But  it  is  not  evidence  of  any 
covenant  in  the  deed  not  connected  with  the  title;  nor  is  the 
enrolment  of  a  deed,  defectively  executed  or  acknowledged, 
evidence  for  any  purpose  whatever.  This  distinction  is  war- 


OF  MARYLAND.  305 


Hoye  vs.  Johnston. — 1844. 


ranted  by  the  limitation  of  the  rule  itself.  For  a  proceeding 
in  a  court  of  record  binds  only  parties,  and  others  claiming 
under  parties  pendente  lite.  A  judgment  against  A,  as  heir  of 
B,  would  not  bind  C,  another  heir  of  the  same  ancestor.  Upon 
what  principle  then,  shall  a  proceeding  in  the  land  office  by 
the  appellant,  to  which  the  appellee  was  no  party,  and  of  which 
he  had  no  notice,  vitiate  a  title  acquired  by  the  appellee  bona 
fide,  and  for  a  valuable  consideration  paid  down  ? 

The  appellant's  case  requires  the  concession  of  this  propo- 
sition, that  no  one  is  bound  by  constructive  notice  of  the  pro- 
ceedings in  the  land  office.  The  only  principle  on  which  the 
opposite  proposition  can  rest,  is,  that  the  proceeding  is  in  rem, 
and  binding  the  title,  must  affect  with  notice,  all  who  would 
deal  with  the  title.  Let  this  be  admitted:  how  then  stands 
the  case?  The  appellant  had  notice,  constructively,  of  the 
suing  out  of  the  appellee's  warrant,  and  of  its  location,  of 
the  return  of  his  certificate,  of  payment  of  composition,  and 
of  his  application  for  a  patent  thereon.  He  permits  the  ap- 
pellee to  negotiate  with  the  State  for  a  grant  of  the  land  in 
dispute,  and  pays  down  his  purchase  money,  concealing  from 
him  the  appellant's  claim  of  title  to  the  same  land.  Is  it  not 
fair  to  argue,  that  silence,  under  such  circumstances,  ought  to 
be  accepted  as  a  waiver  of  the  claim  ?  If  I  permit  another  to 
build  on  my  land  without  objection,  I  cannot  afterwards  assert 
ray  title  against  him.  If  I  witness  the  execution  of  a  convey- 
ance, without  giving  notice  of  my  incumbrance  on  the  land 
thereby  conveyed,  the  purchaser  may  claim  protection  against 
me  and  my  heirs.  Shall  the  appellant  be  permitted  then  to 
rely  on  a  title,  the  knowledge  of  which  he  concealed  from  us 
until  after  we  had  parted  with  the  purchase  money,  and  ac- 
quired a  legal  title  to  the  property  purchased  ?  Upon  the 
principle  of  constructive  notice,  the  appellant  was  capable,  and 
his  concealment  of  his  title  has  operated  to  an  injury.  If  his 
title  had  been  disclosed  in  season,  the  composition  money 
would  not  have  been  paid,  and  our  warrant  might  have  been 
located  elsewhere.  At  this  time  the  appellee  has  no  remedy 
for  recovering  back  the  money  he  has  paid  the  State.  I  con- 
39  v.2 


306  CASES  IN  THE  COURT  OK  APPEALS 

Hoye  vs.  Johnston. — 1844. 

elude,  therefore,  that  the  appellant  will  not  strengthen  his  case 
by  relying  on  the  doctrine  of  constructive  notice;  and,  that  as 
the  appellee  had  purchased  out  his  warrant  before  he  received 
any  notice,  in  fact,  of  the  appellant's  claim,  the  latter  has  no 
equity  against  him. 

Having  thus  shown  that  the  appellee's  title  was  not  obtained 
against  equity,  I  will  next  inquire  into  the  merits  of  the  ap- 
pellant's pretensions.  Now  it  is  conceded,  on  the  other  side, 
that  according  to  the  rules  of  the  land  office,  a  patent  cannot 
issue  for  land  which  is  already  granted.  The  first  patent  must 
be  vacated,  before  a  second  can  be  issued.  Hence  it  follows, 
by  his  own  admissions,  that  the  patent  granted  to  the  appellant, 
in  1838,  was  obtained  irregularly,  illegally,  and  by  a  fraudulent 
suppression  of  the  fact,  that  the  same  land  had  been  previous- 
ly granted  to  Gen.  Swann.  Can  he  predicate  an  equity  upon 
a  title  obtained  by  such  practices  ?  If  the  appellee's  patent 
was  revoked,  it  would  not  avail  the  appellant.  The  outstand- 
ing title  in  the  grantor  of  South  Bar,  would  present  an  insu- 
perable obstacle  to  the  issue  of  a  patent  on  his  certificate  of 
re-survey.  The  Chancellor  would  never  grant  a  patent  in  con- 
firmation of  a  title,  which,  by  the  appellant's  own  showing, 
originated  in  a  violation  of  the  laws  of  the  office. 

The  counsel  for  the  appellant,  anticipating  this  objection, 
has  attempted  to  evade  its  force  by  affirming,  that  in  some 
other  case,  it  has  already  been  adjudged  by  this  court,  that  the 
patent  for  South  Bar  must  yield  to  the  patent  for  Flavia,  the 
original.  In  answer  to  the  argument  of  the  learned  counsel, 
it  will  be  sufficient  to  remark,  in  the  first  place,  that  the  record 
now  before  the  court,  and  upon  which  alone,  the  court's  judg- 
ment must  be  pronounced,  furnishes  no  evidence,  whatever,  of 
any  such  alleged  adjudication.  And  secondly,  that  in  fact  the 
cause  to  which  the  learned  counsel  would  refer,  has  been  re- 
manded to  the  county  court  for  a  new  trial,  in  the  progress  of 
which  the  rights  of  the  parties  may  assume  very  different  as- 
pects. At  this  moment,  and  especially  in  this  cause,  the  court 
is  bound  to  assume  the  validity  of  the  patent  for  South  Bar; 
and  must  therefore  conclude,  that  the  rights  claimed  by  the 


OK  MARYLAND.  307 


Hoye  vs.  Johnston. — 1844. 


appellant,  will,  if  allowed,  operate  to  the  prejudice  of  that  elder 
grant.  Where  is  then  the  basis,  on  which  the  appellant's  pre- 
tence of  equity  may  be  rested  ? 

If  the  patent  for  South  Bar  is  valid,  it  clothed  the  patentee 
with  the  legal  title  to  the  land  embraced  within  its  limits,  and  no 
legal  or  equitable  title  to  the  same  land  could  be  challenged  by 
the  appellant,  under  color  of  the  patent  for  Flavia,  the  original. 
Upon  this  hypothesis  then,  the  appellant's  warrant  of  re-survey 
was  irregularly  issued.     For  none  other  than  the  owner  of  the 
legal  title,  can  sue  out  a  warrant  to  re-survey  the  original,  for 
the  purpose  of  affecting  contiguous  vacancy.     The  warrant  of 
re-survey  was  void  simply,  at  least,  conferred  no  right  as  against 
the  appellee  claiming  under  his  special  warrant.     All  this  is 
apparent  from  the  case  of  Hammond  vs.  JVbrn's,  2  H.  fy  J.  130. 
In  that  case,  the  court  denied  to  a  warrant  of  re-survey,  its  usual 
efficacy  in   binding  the  title   to   contiguous  vacancy,  on  the 
ground  of  a  defect  in  the  plaintiff's  legal  title  to  the  original. 
But  the  court  further  held,  that  a  warrant  of  re-survey,  ob- 
tained on  a  title  defective  at  law,  but  equitable,  may  operate 
as  a  common  warrant,  and  vest  in  the  party  an  equitable  inte- 
rest in  all  the  vacancy  which  may  be  included  in  the  re-survey, 
from  the  time  of  payment  of  the  composition   money  due 
thereon. 

In  applying  the  principles  of  that  decision  to  the  present 
case,  it  is  to  be  observed : 

1st.  That  in  the  original,  on  which  the  appellant  sued  out 
his  wairant  of  re-survey,  he  had  no  equitable  title.  His  origi- 
nal patent  was  sued  out  in  violation  of  the  rules  of  the  land 
office,  and  in  fraud  of  the  rights  of  Gen.  Swann.  Under 
color  of  a  title,  thus  tainted  in  its  origin,  no  title  could  be  as- 
serted at  law  or  in  equity.  I  take  the  distinction  between  the 
case  of  a  party,  who  having  fairly  purchased  the  original,  en- 
deavors, by  a  warrant  of  re-survey,  fairly  sued  out,  executed, 
and  compounded  on,  to  acquire  title  to  contiguous  vacancy, 
and  that  of  a  person,  who,  conscious  of  the  fraudulent  origin 
of  his  pretended  title,  would  yet  use  it  as  an  instrument  for 
extending  his  acquisitions. 


308  CASES  IN  THK  COURT  OK  APPEALS 

Hoye  vs.  Johnston. — 1844. 

2nd.  The  court  in  Hammond  vs.  Norris,  decided,  that  a 
warrant  of  re-survey,  sued  out  in  a  bona  fide,  though  defective 
title  in  the  original,  will,  after  its  location,  be  permitted  to 
operate  as  a  common  warrant,  provided  the  certificate  of  re-sur- 
vey is  returned  and  compounded  on,  before  the  grant  is  issued, 
on  a  subsequent  survey.  All  those  circumstances,  i.  e. — 1, 
actual  location;  2,  return  of  certificate;  3,  payment  of  the 
composition  money;  must  concur  to  give  title  as  against  a  subse- 
quent purchaser.  It  is  expressly  declared,  that  the  equity 
arises  out  of  payment  of  the  composition  money,  and  the 
patent  relates  back  only  to  the  date  of  the  certificate  of  re-sur- 
vey. In  this  case,  it  is  to  be  remarked,  that  the  patent  to  the 
appellee  was  issued  before  payment  of  composition  by  the 
appellant,  on  his  certificate  of  re-survey;  and  that  the  appellee 
had  actually  returned  and  compounded  on  his  certificate,  be- 
fore the  appellant's  certificate  was  returned  into  the  office. 

Waiving,  in  the  next  place,  all  objection  to  the  appellant's 
title  in  the  original,  and  to  the  regularity  of  the  warrant  of 
re-survey,  I  will  next  inquire,  whether,  upon  those  concessions, 
he  can  predicate  an  equity  to  have  the  appellee's  patent  va- 
cated? The  right  of  the  appellant,  in  this  aspect  of  the  case, 
must  rest  on  the  position,  that  the  suing  out  of  his  warrant  of 
re-survey  was  an  appropriation  of  all  vacancy  contiguous  to  the 
original;  and  that  a  patent  issued  on  his  certificate  would  have 
related  back  as  a  conveyance  to  the  date  of  the  warrant. 
But  in  all  the  cases,  it  is  laid  down,  that  this  principle  of  re- 
lation is  an  equitable  principle,  and  that  a  party  claiming  the 
benefit  thereof,  must  show  that  he  has,  in  all  his  proceedings, 
conformed  to  the  rules  of  the  land  office.  Any  departure  from 
those  rules,  or  irregularity,  or  laches  in  executing  his  warrant, 
or  returning  or  compounding  on  his  certificate,  will  place  him 
beyond  its  protection,  vide  Dorsey's  Ejectment,  98,  &c.  Vide 
especially,  page  103,  and  the  case  of  Beall  vs.  Beall,  there 
cited  from  1  H.  Sf  /.,  346. 

Upon  the  authority  of  those  cases,  I  insist,  that  the  appel- 
lant's right  of  priority,  acquired  under  his  warrant,  was  lost 
by  his  failure  to  compound  on  his  certificate  within  twelve 


OF  MARYLAND.  309 


Hoye  vs.  Johnston. — 1844. 


months  from  the  date  of  his  warrant.     And  I  apprehend,  that 
if  this  case  had  originated  in  any  other  than  Jlllegany  county, 
it  would  be  conceded,  that  there  had  been  delay  in  the  pay- 
ment of  the  composition  money,  and  that  such  delay  was  fatal 
to  the  pretensions  of  the  appellant.     The  endeavor  of  his 
counsel  is,  to  show  that  in  regard  to  the  time  limited  for  pay- 
ment of  composition,  there  is  one  law  for  Jlllegany  county, 
and  another  for  the  rest  of  the  State.     I  must  confess,  that  he 
is  sustained  by  the  authority  of  Chancellors  Johnson  and  Bland, 
in  his  position,  that  in  surveys  in  Jlllegany  county,  the  time 
for  payment  of  composition  is  extended  to  twelve  months  from 
the  date  of  the  certificate.     Nevertheless,  I  would  most  re- 
spectfully submit,  that  such  authority  is  not  conclusive  of  the 
question,  when  it  comes  under  review-  of  this  court,  and  that 
the  opinions  expressed  by  the  late  and  present  Chancellors, 
tend  to  establish  invidious  distinctions,  and  to  introduce  anom- 
alies, not   contemplated   by  law.     The  act  of  1781,  ch.  20, 
sec.  6,  declares,  that  the  time  for  compounding  shall  be  one 
year  from  the  date  of  the  warrant.     By  the  act  of  1795,  ch. 
88,  sec.  10,  if  any  certificate  of  survey  or  re-survey,  shall  be 
returned,  and  not  compounded  for,  agreeably  to  law,  such  sur- 
vey or  re-survey,  shall  be  liable  to  a  proclamation  warrant. 
The  sec.  7  of  the  same  act  had  declared,  that  no  certificate  of 
survey  or  re-survey  shall  be  received  into  the  land  office,  unless 
the  same  be  passed  by  the  examiner  general,  and  returned   to 
the  office  within  eighteen  months  from  the  date  of  the  warrant. 
Here  is  then  the  distinction  taken,  between  a  void  certificate 
and  a  voidable  certificate.     A  failure  to  return  the  certificate 
into  the  office,  within  eighteen  months  from  the  date  of  the 
warrant,  annulled  the  certificate.     A  failure  to  compound  on  a 
certificate,  duly  returned  within  twelve  months  from  the  date  of 
the  warrant,  rendered  the  certificate  voidable  at  the  suit  of  any 
one  who  would  sue  out  a  proclamation  warrant  to  affect  the 
same  land.     A  certificate  annulled,  because  of  a  failure  to 
have  it  returned  within  time,  left  the  land,  intended   to  be  af- 
fected thereby,  in  the  same  condition  as  if  the  warrant  had  not 
been  issued,  and  liable  to  be  taken  up  on  any  warrant  and  in 


310  CASES  IN  THE  (JOU11T  OF  APPEALS 

Hoye  vs.  Johnston. — 1844. 

any  quantity.     Under  a  proclamation  warrant,  the  party  was 
obliged  to  re-survey  all  the  lands  included  in  the  original  survey. 
Hence,   it  occasionally  happened,  that  in  Allegany  county, 
large  bodies  were  included  in  surveys  which  remained  uncom- 
pounded  on,  and  therefore,  liable  to  proclamation,  but  to  no 
other  species  of  warrant ;  and  therefore,  by  act  1804,  ch.  75, 
reciting  the  grievance  resulting  in  that  county  from  that  state 
of  things,  it  is  enacted,  that  all  certificates  of  surveys  of  land 
in  Allegany  county,  theretofore  made  and  not  compounded  on, 
and  then  liable  to  proclamation,  shall  be  on  or  before  a  day 
thereafter,  unless  then  paid  on  or  secured  by  proclamation,  be 
vacated,  &c.     The  clear  effect  of  this  act  is,  to  annul   the 
certificate  after  a  certain  time,  but,  in  the  meanwhile,  to  con- 
tinue their  liability  to  be  proclamated.     In  other  words,  cer- 
tificates then  voidable,  were  to  remain  voidable  until  a  certain 
day,  and  then  to  become  absolutely  void.     This  act  related 
only  to  certificates  which  had  been,  previous  to  its  passage, 
returned  into  the  land  office.     In  the  year  1822,  other  certifi- 
cates were  discovered   to  be   in  a   like  predicament,  and  the 
legislature  therefore,  by  a  supplement  to  the  former  act,  and 
after  a  like  recital  with  that  contained  in  the  original,  by  sec- 
tion 1,  enacts,  that  all  certificates  of  surveys  of  land  in  Allegany 
county,  made  since  the  passage  of  the  former  act,  and  not 
compounded  on,  and  therefore  liable  to  proclamation,  be  va- 
cated, &c.,  on  and   after  a  certain  day,  unless  then  paid  on. 
Up  to  that  day,  it  is  clear,  those  certificates  were  to  remain 
liable  to  proclamation.     And  it  is  equally  clear,  that  the  legis- 
lature did  not  intend  to  enlarge  the  time  for  payment  of  com- 
position, in  favor  of  the  owners  of  any  of  the  certificates 
embraced  within  the  provisions  of  either  of  those  nets.     The 
interest  of  the  public,  was  the  motive  for  each  enactment;  and 
this  object  was  to  amend,  by  vacating  those  certificates,  abso- 
lutely, after  a  certain  day,  unless,  before  that  day,  they  should 
be  proclamated  under  the  existing  laws.     The  next  case  of 
the  legislature  was,  to  provide  against  a  repetition  of  the  evil. 
This  is  done  by  section  3,  which  annuls  all  certificates  there- 
after to  be  made  and  returned;  and   not  compounded  upon 


OF  MARYLAND.  311 


Hoyo  vs.  Johnston. — 1844. 


within  twelve  months  from  the  date  of  the  certificate.  This 
section,  I  submit,  ought  to  be  subject  to  the  principle  of  con- 
struction, which  is  applied  to  section  1  of  the  same  act,  and 
the  original  act  of  1804.  And  as  neither  affected  to  extend 
indulgence  to  the  holders  of  certificates,  we  ought  not  so  to 
construe  the  sec.  3  of  1822,  as  enlarging  the  time  within  which 
future  certificates  should  be  compounded.  We  ought  not  to 
assume,  that  the  legislature  designed  to  extend  indulgences  to 
the  people  of  Jillegany^  which  were  denied  to  her  citizens  re- 
siding elsewhere.  The  true  construction,  I  insist,  is,  that  in 
future,  certificates  are  to  be  returned  within  the  time  limited 
by  the  general  law ;  are  to  be  compounded  on  as  directed  by 
law ;  are  to  remain  liable,  as  heretofore,  to  proclamation,  and 
after  a  default,  continuing  until  after  twelve  months  from  the 
date  of  the  certificate,  the  survey  shall  be  entirely  annulled, 
and  the  land  was  so  restored  to  its  original  condition,  and  be 
liable  to  appropriation  as  if  it  had  never  been  surveyed.  Not 
one  word,  it  is  to  be  observed,  is  said  about  repealing  procla- 
mation warrants  in  reference  to  Jillegany  county,  nor  is  any 
state  of  facts  given,  which  would  have  justified  the  legislature 
in  extending  to  the  people  of  Jillegany ,  an  indulgence  for  nearly 
thirty  months,  whilst  the  rest  of  the  State  remain  subject  to 
the  original  law,  and  may  be  required  to  perfect  their  titles 
within  twelve  months  from  the  date  of  their  warrant.  It  is  to 
be  observed,  in  conclusion,  that  this  question  may  be  treated 
as  an  open  question,  without  any  general  inconvenience.  A 
reversal  of  the  Chancellor's  opinion,  in  regard  to  the  con- 
struction of  the  act  of  1822,  may,  and  will  change  the  practice 
in  the  land  office.  But  it  cannot  possibly  impair  any  title  de- 
rived under  that  act.  The  practical  effect  of  the  construction 
placed  on  the  act,  has  been  to  prevent  the  acquisition  of  titles 
under  color  of  proclamation  warrants.  But  the  titles,  actually 
granted,  will,  under  any  construction  of  the  act,  remain  un- 
impaired. 

It  is  again -insisted,  that  the  form  of  the  proceeding  is  im- 
proper. The  attorney  general  ought  to  have  been  a  party 
suing  by  information.  The  general  rule  is  to  be  found  in 


312  CASES  IN  THE  COUilT  OK  APPEALS 

Hoye  vs.  Johnston. — 1844. 

Mitford's  pleading.     A  leading  case  on  the  subject,  is  to  be 
found  in  2  Sch.  fy  Lefr.  617.     I  think  it  may  be  confidently 
affirmed,  that,  in  every  case  in  which  the  validity  of  the  King's 
grant  has  come  into  question,  the  attorney  general  has  been 
a  party,  and  that  in  every  instance  in  which  the  proceeding 
has  been  instituted  to  vacate  a  patent,  it  has  assumed  the  shape 
of  an  information.     It  is  fit,  that  in  every  case  in  which  the 
King's  acts  are  brought  into  question,  there  should  be  some 
one  present,  charged  to  protect  his  rights,  and  vindicate  his 
justice.     In  many  instances,  the  King  is  the  exclusive  judge 
of  the  propriety  of  vacating  his  own  grant.     The  subject  can 
assume  the  privilege  of  controlling  or  directing  this  discretion 
only  where  the  grant  conflicts  with  his  vested  rights;  and  even 
here  the  King's  officers  must  have  the  privilege  of  determining 
whether  there  is  a  vested  right,  which  is  in  peril  by  the  grant. 
In  the  present  case,  the  necessity  for  the  presence  of  the  at- 
torney general  is  made  apparent  by  a  consideration  of  the 
relief  which  is  asked,  and  which  alone  could  be  granted.   The 
only  relief  that  can  be  given,  would  be  to  vacate  the  appellee's 
patent,  whereby  the  title  would  be  reverted  in  the  State.     A 
conveyance  from  appellee  to  the  appellant,  could  not  be  de- 
creed, since  this  court  cannot  judicially  know,  nor  can  it  be 
found,  upon  the  proofs  taken  and  admissions  made  between 
these  parties,  that  the  appellant  has  complied  with  all  the  con- 
ditions of  the  land  office,  and  therefore,  is  entitled  to  a  patent. 
It  is  admitted,  for  the  purpose  of  this  suit,  that  the  appellant 
has  compounded  on  his  certificate.     No  such   admission  has 
been  made  on  the  part  of  the  State.     The  case  has  been  con- 
ducted between  these  parties  as  if  the  existence   of  the   out- 
standing grant  to  the  appellee,  formed  the  only  obstacle  to  the 
issuing  of  a  grant  to  the  appellant.     For  any  thing  that  this 
court  knows,  or  can  judicially  discover,  there  may  be  a  multi- 
tude of  other  objections  resting  on  a  like  number  of  caveats, 
interposed  by  other  parties.     Will  the  court  undertake  to  say 
the  appellant  has  complied  with  all  the  regulations  of  the  land 
office,  and  the  appellee's  patent  being  removed,  is  entitled  to 
his  grant? 


OF  MARYLAND.  313 


Hoye  vs.  Johnston. — 1844. 


The  appellant's  counsel  supposes  this  question  is  set  at  rest 
by  the  cases  of  Garretson  vs.  Cole,  1  H.  8f  J.,  370,  and  West 
vs.  Jarret,  1  H.  fy  J.,  538.  In  one  of  these  cases  relief  was 
granted  by  the  Chancellor,  but  his  decree  was  reversed  on  ap- 
peal. In  the  other,  relief  was  denied  by  the  Chancellor,  but 
granted  by  the  Court  of  Appeals.  In  neither  of  those  cases, 
was  the  objection,  now  relied  on,  taken.  And  it  is  to  be  ob- 
served, that  in  each  case  there  were  circumstances  of  actual 
fraud,  in  violation  of  contract,  which  presents  a  peculiar  case. 
It  is  not  like  the  present,  which  rests  on  a  pretended  violation 
of  the  laws  of  the  land  office.  In  other  cases,  moreover,  it 
will  be  found,  that  the  attorney  general  was  treated  as  a  ne- 
cessary parly.  These  cases  are  just  as  strong  to  show,  that 
he  ought  to  be  made  a  party,  as  the  others  can  be  to  show, 
that  he  need  not  be  made  a  party.  If  the  State  has  an  inter- 
est in  the  suits,  that  interest  must  be  represented  by  the  attor- 
ney general.  If  the  State  has  no  interest,  then  his  presence  as 
a  party  is  improper.  Now,  I  insist,  that  a  decree  passed  on  an 
information  by  the  attorney  general,  is  conclusive  to  show, 
that  the  State  has  a  substantial  interest  in  the  subject  of  the 
suits.  On  the  other  hand,  a  decree  passed  between  private 
parties  only  shows,  that  the  court  may  have  overlooked  the 
existence  of  that  interest,  which  needed  the  intervention  of  the 
State's  attorney.  The  cases  to  which  I  refer,  are  to  be  found 
in  2  H.  $  McH.  201,  244.  4  H.  £  McH.  6.  1  H.  &  J.  332. 
2  H.  &  J.  472,  487. 

The  learned  counsel  next  insists,  that  if  it  should  be  ad- 
judged, that  the  attorney  general  is  a  necessary  party,  the 
case  may  be  remanded  to  the  Court  of  Chancery,  for  further 
proceedings.  This  may  be  done,  where  the  party  entitled  to 
sue,  in  bringing  before  the  court  the  material  defendants  in 
interest,  omits  to  make  defendants  of  others,  whose  presence 
is  necessary,  for  the  purpose  of  making  title  or  passing  a  com- 
plete decree.  But  there  is  no  instance  in  which  a  case  has 
been  sent  back,  to  make  complainants  of  others,  who  ought  to 
have  sued  with  the  complainant.  When  the  cause  is  returned 
to  the  Court  of  Chancery,  it  stands  as  if  no  appeal  had  been 
40  v.2 


314  CASES  IN  THE  COURT  OF  APPEALS 

Hoye  vs.  Johnston. — 1844. 

taken,  or  decree  entered,  and  the  court  is  authorised  to  permit 
any  proceedings  to  be  had,  which  might  have  taken  place  an- 
terior to  the  passing  of  the  decree.  Now,  I  apprehend,  the 
practice  in  regard  to  making  new  parties,  by  amendment, 
would  not  justify  the  introduction  of  a  new  party  as  complai- 
nant. If  one  of  two  obligees,  should  inadvertently  sue  the 
obligor,  he  could  not  amend  by  joining  his  co-obligee,  as  com- 
plainant. He  would  have  to  dismiss  his  bill,  and  begin  anew, 
or  suggest  a  reason  for  bringing  him  before  the  court  as  a  de- 
fendant. And  the  reason  for  this  distinction  is  obvious.  I 
may  be  made  a  defendant  against  my  consent,  whenever  my 
presence  is  necessary  to  the  determination  of  light  between 
others.  But  I  cannot,  without  my  consent,  be  made  to  assume 
the  attitude  of  complainant.  The  court  cannot  authorise  A  to 
use  the  name  of  B,  as  complainant.  Nor  is  it  just ;  nor  would 
it  conduce  to  dispatch  or  economy  in  the  general  administra- 
tion of  justice,  that  B  should  be  permitted  in  concert  with  A, 
to  become  a  party  complainant  to  a  suit,  originally  instituted 
by  B.  New  process  would  require  to  be  issued  on  such  an 
amendment;  and  the  defendant  would  be  at  liberty  to  make  a 
new  defence  to  the  entire  case.  Where  is  then  the  advantage 
to  be  gained  by  a  change  in  the  practice  ?  The  utmost  that 
can  be  said  is,  that  the  bill  should  be  dismissed,  without  pre- 
judice. 

The  present,  is  stronger  than  the  case  I  have  already  stated. 
The  attorney  general  is  the  necessary  party  complainant.  He 
may  sue  on  his  mere  motion,  or  in  the  relation  of  the  present 
appellant.  It  is  not  necessary  that  the  appellant  should  be  a 
party  at  all.  If  he  is  permitted  to  unite  with  the  attorney 
general,  he  is  an  auxiliary,  and  not  a  principal  party,  and  his 
presence  is  necessary  only  to  enable  the  court  to  make  a  com- 
plete decree.  He  stands  pretty  much  in  regard  to  the  attorney 
general,  as  a  feme  covert  does  who  sues  without  her  husband. 
Could  a  feme  covert,  suing  alone,  amend  by  making  her  hus- 
band a  party? 

I  submit,  then,  that  the  attorney  general  is  a  material  and 
necessary  party;  that  the  suit  ought  to  have  assumed  the  form 


OF  MARYLAND.  315 


Hoye  vs.  Johnston. — 1844. 


of  an  information,  and  not  that  of  a  bill.  For  these  reasons 
this  decree  ought  to  be  affirmed,  without  regard  to  any  sup- 
posed merits. 

Next,  I  submit,  that  the  appellant  has  no  merits,  and  I  rely 
much  on  the  fact,  that  hitherto  no  effort  has  been  made  to  set 
aside  a  patent,  upon  the  ground  of  notice,  simply  of  a  sup- 
posed prior  equity  in  the  complainant.  The  absence  of  any 
such  case  is  a  strong,  if  not  conclusive  argument,  against  the 
claim  pretended. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

The  plaintifrin  error,  filed  his  bill  in  the  Court  of  Chancery, 
to  vacate  a  patent  which  the  defendant  had  obtained,  on  the 
ground,  that  the  survey  on  which  the  patent  was  granted,  was 
in  fraud  of  his,  the  plaintiff's  right. 

These  facts  appear  in  the  case.  The  plaintiff  on  the  5th 
September  1839,  obtained  a  warrant  of  re-survey.  He  made 
his  survey  on  the  19th  May  1840;  returned  his  certificate  of 
survey  on  31st  July  1840;  and  paid  the  composition  money 
on  the  18th  February  1841. 

The  defendant  obtained  a  special  warrant,  29th  June  1840, 
(more  than  one  month  after  the  plaintiff's  survey  of  his  land,) 
executed  it  on  the  llth  July  1840,  returned  his  certificate  of 
survey,  and  paid  the  composition  money,  24th  July  1840;  and 
on  27th  January  1841,  procured  his  patent,  and  then  entered  a 
caveat,  to  prevent  the  granting  of  a  patent  to  the  plaintiff,  on  his 
certificate  of  survey.  The  two  certificates  of  survey  include  the 
same  land.  As  the  defendant  had  obtained  a  patent  for  land, 
comprehended  in  the  plaintiff's  certificate,  as  vacant  land,  no 
patent,  according  to  the  rules  of  the  land  office,  can  be  given 
to  the  plaintiff  until  the  defendant's  patent  is  vacated. 

One  of  the  grounds  of  objection,  to  the  relief  asked,  is,  that 
the  plaintiff  was  not  seized  of  the  tract  of  land,  on  which  he 
obtained  his  warrant  of  re-survey.  It  appears,  however,  that 
the  tract  of  land  called  Flavia,  which  was  to  be  re-surveyed, 
was  granted  to  the  plaintiff  himself,  7th  September  1838;  and 
that  the  land  in  controversy,  was  contiguous  to  that  tract. 


316  CASES  IN  THE  COURT  OF  APPEALS 

Hoyo  us.  Johnston. — 1844. 

The  objection  is,  that  this  same  parcel  of  land,  had  been  pre- 
viously granted  to  James  Swann.  The  plaintiff's  counsel  in- 
sists, that  it  has  been  adjudged,  that  the  alleged  grant  to 
Swann,  must  yield  to  the  patent  for  Flavia;  and  the  answer 
given  to  this,  is,  that  the  adjudication  no  where  is  to  be  found  in 
this  record;  and  from  that  adjudication, the  plaintiff  in  error  can 
derive  no  advantage.  This  will  not  be  controverted ;  but  then, 
the  record  furnishes  no  evidence,  that  the  land  claimed  for 
Swann  was  an  older  tract  than  that  of  the  complainant.  It 
•would  be  difficult  for  the  court  to  discover,  by  an  inspection 
of  this  record,  that  the  plaintiff,  at  the  time  that  he  obtained 
his  warrant  of  re-survey,  was  not  seized  of  the  tract  called 
Flavia,  and  for  which  he,  himself,  had  obtained  a  patent. 

In  addition  to  this,  it  may  be  remarked,  that  the  plaintiff 
had  made  his  survey  before  the  defendant  had  obtained  his 
special  warrant.  In  the  case  of  Hammond  vs.  Norris,  the 
general  court  determined,  that  although  a  person,  who  has  not 
a  title  to  the  land  on  which  he  obtains  a  warrant  of  re-survey, 
cannot  thereby  claim  a  right  of  pre-emption,  in  all  contiguous 
vacancy,  yet,  such  a  warrant  will  operate  as  a  common  war- 
rant. See  2nd  Harr.  %  John.  141.  And  the  plaintiff's  cer- 
tificate of  survey,  being  older  than  the  defendant's  special  war- 
rant, then,  upon  the  payment  of  the  composition  money,  the 
title  to  the  land  commences  from  the  date  of  the  survey;  pro- 
vided, the  composition  money  was  paid  by  the  plaintiff,  with- 
in the  time  required  by  law. 

The  question  then  arises,  was  the  composition  money  paid 
by  Hoye  in  due  time? 

He  made  his  survey,  19th  May  1840;  and  paid  the  compo- 
sition money  1st  February  1841.  If  the  land  had  been  situ- 
ate in  other  parts  of  the  State,  it  would  not  have  been  paid, 
within  the  time  required.  But  the  warrant  ol  re-survey  was 
obtained  on  a  tract  of  land  in  Jlllegany,  and  in  that  county 
all  the  vacancy,  also,  is  situated.  Whether,  then,  Hoye  paid 
the  money,  within  the  time  required  by  law,  is  to  be  decided 
by  the  act  of  1822,  ch.  128,  sect.  3.  This  act  declares  all 
certificates  of  survey  to  be  null  and  void,  "which  shall  not 


OF  MARYLAND.  31P 


Hoye  vs.  Johnston. — 1844. 


be  compounded  upon,  within  twelve  months  from  the  date  of 
such  certificate."  If  this  law  was  now,  for  the  first  time,  to 
receive  its  interpretation,  it  would  seem  to  be  clear,  that  the 
owner  of  the  certificate  of  survey,  by  the  payment  of  the  compo- 
sition money,  at  any  time  within  twelve  months  after  the  date 
of  his  certificate,  would  be  entitled  to  all  the  rights  which  he 
might  have  secured  to  himself,  by  the  payment  of  it  on  the  day 
of  its  date.  Such  is  the  construction  it  has  received  ever  since 
its  enactment,  and  now,  none  other  ought  to  be  given  to  it. 
The  composition  money  was  paid  by  Hoye,  within  ten  months 
after  the  date  of  the  certificate. 

It  is  concluded,  then,  that  the  plaintiff  in  error  has  a  right  to 
impeach  the  defendant's  survey  and  grant;  and  is  entitled  to 
relief,  if  he  has  established  the  fraud,  and  asked  relief  in  the 
proper  form:  was  there  any  fraud  practised  by  the  defendant  in 
the  execution  of  his  warrant,  the  survey  of  the  land,  the  return 
of  the  certificate  of  survey,  and  obtaining  the  patent,  by  which 
the  plaintiff  in  error  is  prevented  from  obtaining  the  patent  to 
which  he  is  entitled? 

On  the  29th  June  1840,  the  defendant  obtained  a  special 
warrant,  and  by  the  express  terms  of  that  warrant,  he  had 
authority  to  survey,  in  order  to  purchase  the  vacancy  of  which 
he  gave  a  description;  provided,  that  in  making  that  survey, 
he  did  not  run  his  lines  "within  the  lines  of  any  former  or 
more  ancient  survey."  This  he  was  evidently  forbidden  to 
do;  and  to  prevent  unintentional  violations  of  this,  the  second 
of  the  rules,  adopted  by  the  Governor  and  Council  in  1782, 
and  which  from  time  immemorial  had  been  a  rule  of  the  land 
office,  was  adopted.  See  the  rule  in  Landholders  Assistant, 
p.  435;  and  opportunity  was  thereby  afforded  to  the  defen- 
dant to  know,  and  he  is  presumed  to  know,  that  before  he 
obtained  his  warrant,  another  warrant,  whether  in  name  a 
general,  or  special  warrant,  had  actually  been  located;  and 
this  land,  now  in  dispute,  had  been  included  in  a  survey 
by  another  person.  Besides  being  presumed  to  know  this, 
his  answer  admits,  that  he  had  actual  notice  of  it,  and  with  a 
knowledge  of  it,  he  actually  prevailed  upon  the  surveyor,  to 


318  CASES  IN  THE  COURT  OF  APPEALS 

i • — — — — 

Hoye  vs.  Johnston. — 1844. 

violate  the  instructions  under  which  he  was  acting,  and  to 
represent  to  other  officers  of  the  State,  who  were  to  judge  of 
the  fairness  and  regularity  of  his  proceedings,  that  in  executing 
his  warrant,  he  had  conformed  to  the  rules  of  the  office;  and 
by  these  misrepresentations  the  defendant  so  obtained  the  pat- 
ent, which  now  enables  him  to  deprive  his  antagonist  of  a 
grant,  to  which  he  is  entitled.  It  is  easily  to  be  accounted  for, 
that  the  officers  of  the  land  office,  especially  in  earlier  days, 
were  not  over-anxious  for  a  rigid  observance  of  the  rules  of 
office;  or  as  a  former  Chancellor  of  Maryland  observed,  deter- 
mined "merely  with  reference  to  the  interests  of  the  State,  or 
perhaps  its  officers."  The  lord  proprietary,  first,  and  then  the 
State,  had  land  to  dispose  of;  and  if  the  vendee  paid  the  price 
asked,  for  every  acre,  to  which  his  grant  gave  him  a  title,  the 
vendor  was  no  gainer  by  a  rigid  observance  of  these  rules. 
Still,  it  was  the  duty  of  all  to  take  notice,  and  not  to  violate 
those  laws;  and  more  especially,  not  by  acting  fraudulently 
themselves,  to  obtain  an  unconscientious  advantage  of  others. 
Some,  who  take  up  lands  in  Maryland,  seem  to  think,  that  there 
is  scarcely  any  regulation  of  the  office,  which  men,  dealing  for 
land,  are  bound  to  observe;  except  that  which  requires  a  man 
to  be  seized  of  the  tract  of  land,  upon  which  he  applies  for  a 
warrant  of  resurvey;  and  accordingly,  this  defendant,  who 
claims  a  right  to  urge  this,  as  an  objection  to  a  grant  being 
issued  to  the  plaintiff,  claims  it,  because  of  violations  by  him- 
self of  many  of  the  regulations  of  the  office;  whereby,  the 
officers  were  deceived,  and  the  plaintiff  is  defrauded. 

If  indeed,  such  objections,  as  it  may  be  presumed  that  the 
defendant  would  urge,  in  opposition  to  the  claim  of  the  plain- 
tiff to  a  grant,  had  been  established  by  proof,  in  the  case,  it 
would  not  be  necessary  for  the  court  to  inquire  minutely  into 
the  actings  and  doings,  and  the  motives  for  those  actings  and 
doings  of  the  defendant;  but  as,  in  his  efforts  to  destroy  the 
plaintiff's  equity,  he  has  been  so  unsuccessful,  it  can  no  longer 
be  controverted,  that  this  whole  proceeding  on  the  part  of  the 
defendant,  was  in  fraud  of  the  law;  and  that,  of  the  frauds 
practised,  in  order  to  obtain  a  patent  to  himself,  and  then,  by 


OF  MARYLAND.  319 


Hoye:'cs.  Johnston. — 1844. 


the  aid  of  that  patent,  to  prevent  the  plaintiff  from  obtaining 
one,  the  latter  has  just  cause  to  complain  and  to  ask  relief 
therefrom. 

But,  then  it  is  contended,  that  although  the  defendant  may 
have  obtained  his  patent  by  fraud,  and  although  the  plaintiff 
in  error,  may  be  entitled  to  ihe  relief  which  he  seeks,  yet,  in 
this  case,  he  cannot  obtain  it;  and  this,  because  the  State  has 
not  be^n  made  a  party,  (either  complainant  or  defendant,)  to 
the  suit.  The  counsel  in  the  course  of  their  argument,  have 
furnished  us  with  some  cases  like  this,  in  which  relief  was 
given,  although  the  State  was  not  made  a  party  to  the  bill  of 
complaint. 

We  are  told,  that  "the  non-joinder  of  a  mere  nominal  or  for- 
mal party,  will  often  be  dispensed  with,  if  entire  justice  can 
be  done  without  him ;  or  if  he  cannot,  properly,  be  made  a  party 
to  the  suit."  Story's  Equity  Pleading  196.  No  person  should 
be  made  a  paity  who  has  no  interest  in  the  suit,  and  against 
whom,  if  brought  to  a  hearing,  no  decree  can  be  had.  Now, 
it  would  be  difficult  to  prove,  that  the  State  has  any  interest 
in  the  decree,  which  may  with  propriety  be  passed  in  this  case. 
The  State,  moreover,  is  not  bound  to  be  a  party  complaining; 
and  has  taken  care  to  let  it  be  known,  that  she  does  not  choose 
to  be  a  defendant  in  her  own  courts.  It  is  not  necessary  that 
she  should  be  a  party;  it  should  not  rest  with  the  State,  or 
any  department  of  its  government,  to  say,  whether  one  of  her 
citizens,  really  aggrieved  by  another  citizen,  shall  have  justice 
administered  to  him.  We  have  then  precedent  and  rule  to 
warrant  the  decision,  that  although  the  State  is  no  party  to 
the  bill,  ample  relief  may  be  had. 

We  therefore  reverse  the  decree  of  Chancery,  with  costs  in 
both  courts,  and  decree,  that  the  said  Johnston  shall  convey 
to  Hoye,  in  fee  simple,  all  the  land  included  in  his  patent, 
dated  the  27th  January  1841,  for  a  tract  called  "FortMeigs." 

DECREE  REVERSED  AND  CAUSE  REMANDED. 


320  CASES  IN  THE  COURT  OF  APPEALS 

Welch  vs.  Parran,  et  aZ.— 1844. 

ROBERT  WELCH  OF  BENJAMIN,  vs.  JOHN  PARRAN,  ET  AL. — 
December  1844. 

P.  sold  a  tract  of  land  to  T.  for  $8000  ;  of  which,  $1000  was  secured 
by  the  vendee's  notes;  $2000,  due  in  1841  and  1842,  secured  by  the 
vendee's  notes  with  W.  as  endorser ;  and  the  balance  of  $5000,  due 
from  1843  to  1847,  secured  by  the  vendee's  notes  with  D.  and  S.  as 
endorsers.  The  vendee  died  insolvent.  The  vendor  recovered  judgment, 
at  law,  against  W.,  and  then  proceeded  in  equity  to  sell  the  land,  which 
he  purchased  in  at  $4000.  Upon  a  bill,  filed  by  W.  to  compel  P.  to 
apply  the  $4000  in  discharge  of  the  notes  first  due,  and  to  restrain  his 
proceedings  at  law  upon  his  judgments,  HELD  :  that  the  product  of  the 
sale  should  be  so  applied,  under  the  direction  of  the  Court  of  Chancery,  as 
would  give  full  security  to  the  vendor,  which  might  be  done  by  enquiring 
into  the  pecuniary  condition  of  the  sureties. 

If  any  one  of  the  sureties  should  be  found  unable  to  pay,  then  the  vendor 
should  be  secured  by  applying  so  much  of  the  proceeds  of  sale,  as  would 
extinguish  the  note  thus  endangered. 

The  vendor  is  entitled  to  full  payment  from  the  one  security  or  the  other ; 
or  if  one  is  insufficient,  from  the  additional  security.  The  endorsed  notes 
are  to  be  considered  as  additional  securities. 

The  vendor  is  not  bound  to  wait,  during  the  time  occupied  in  ascertaining 
the  condition  of  the  securities,  but  as  the  notes  become  due  may  enforce 
them  at  law. 

Such  of  the  sureties  as  pay,  may  be  subrogated  to  the  rights  of  the  vendor, 
to  the  extent  of  any  interest  they  may  have  in  the  purchase  money. 

Where  an  injunction  issues  to  restrain  proceedings  at  law,  upon  the  ground 
of  credits  not  allowed,  and  the  defendant  admits  the  credits  in  his  answer, 
and  consents  to  allow  them,  the  injunction  should  be  dissolved  as  to  the 
balance  duo. 

APPEAL  from  the  Court  of  Chancery. 

This  was  an  appeal  from  an  order,  dissolving  an  injunction. 

The  bill  was  filed  by  the  appellant,  on  the  22nd  April  1844, 
and  alleged,  that  about  the  month  of  December  1839,  James 
Tongue,  then  of  Calvert  county,  now  deceased,  purchased  of 
John  Parran,  a  tract  of  land,  lying  therein,  called  Elkton  Head 
Manor,  containing  about  1231  acres,  for  the  sum  of  $8000; 
that  the  said  land  when  so  purchased,  was  covered  with  large 
quantities  of  valuable  timber  and  wood,  with  the  proceeds  of 
the  sales  of  which,  the  said  Tongue  expected  to  pay  for  the 
same,  and  in  consideration  of  which,  the  said  Parran  allowed 


OF  MARYLAND.  321 


Welch  vs.  Parran,  et  al— 1844. 


the  said  Tongue,  to  pay  the  purchase  money  in  many  and  ex- 
tended instalments;  that  your  orator  knowing  the  premises, 
and  relying  on  the  proposed  execution  of  a  deed  of  trust,  here- 
inafter mentioned,  by  the  said  Tongue,  became  a  surety  for 
the  same  Tongue,  in  the  execution  of  two  notes  to  said  Parran, 
each  for  $1000,  in  part  payment  of  the  said  purchase  money; 
one  of  them  payable  on  the  1st  January  1841,  and  the  other, 
one  year  thereafter;  that  Henry  C.  Drury,  of  William,  also 
became  surety  on  two  such  notes,  for  the  same  amount,  paya- 
ble each  for  $1000,  the  one  on  the  1st  January  1843,  and 
your  orator  believes,  the  other  to  be  payable  one  year  thereaf- 
ter; that  John  S.  Skinner  also  became  a  surety  on  three  of 
such  notes,  each  for  $1000,  the  times  of  the  payment  of  which, 
though  unknown  to  your  orator,  were  to  expire  after  the  pay- 
ment of  the  other  notes  aforesaid.  That  afterwards,  about  the 
24th  December  1841,  the  said  James  Tongue,  executed  the 
deed  of  trust  above  mentioned,  to  Cephas  Simmons  and  Rich- 
ard Estep,  conveying  the  said  land,  with  the  approbation  of  the 
said  Parran,  to  them,  with  certain  other  property  therein  spe- 
cified, "in  trust,  for  the  sole  object  and  intent,  to  defend  and 
save  harmless  your  orator  and  his  aforesaid  co-sureties,"  on 
account  of  their  respective  liabilities  as  aforesaid ;  that  after- 
wards, to  wit,  about  the  month  of  September  last,  the  said 
James  Tongue  departed  this  life,  intestate,  leaving  Gideon  G. 
Tongue  and  others,  his  heirs  at  law,  and  that  there  hath  been 
no  administration  granted  on  his  personal  estate.  That  after- 
wards, about  the  4th  November  last,  the  said  John  Parran 
filed  his  bill  of  complaint  in  this  court,  against  the  heirs  and 
trustees  aforesaid,  of  the  said  James  Tongue,  deceased,  for  the 
sale  of  the  aforesaid  land,  to  pay  the  purchase  money,  for 
which  your  orator  and  his  co-sureties,  were  responsible  as 
aforesaid;  whereon  such  proceedings  were  had,  that  on  the 
23rd  January  last,  your  honor  passed  a  decree  for  the  sale  of 
the  said  land,  on  the  terms  which  the  said  Parran  desired,  viz: 
one  third  of  the  purchase  money,  payable  in  six  months,  and 
the  balance  in  one  and  two  years  from  the  day  of  sale;  that 
accordingly,  on  the  9th  April  instant,  Jonathan  Pinkney,  the 
41  v.2 


322  CASES  IN  THE  COURT  OF  APPEALS 

Welch  vs.  Parran,  et  al.— 1844. 


trustee  for  the  sale  thereof,  sold  the  same  to  the  said 
for  the  sura  of  $4000;  that  by  the  said  proceedings,  it  appears, 
that  one  of  the  notes  aforesaid,  on  which  your  orator  was  a 
surety,  hath  been  paid,  and  that  $300  hath  been  paid  on  the 
second  of  said  notes,  of  which  your  orator  was  a  surety,  and 
that  in  addition  thereto,  your  orator  is  entitled  to  another  cre- 
dit of  $100.38,  as  of  the  21st  October  1842,  whereby,  the 
balance  now  due  by  your  orator,  is  reduced  to  the  sum  of 
$848.40,  as  of  the  25th  inst. ;  that  though  the  said  John  Par- 
ran,  hath  in  his  bill  aforesaid,  admitted,  that  your  orator  hath 
paid  him  the  aforesaid  sum  of  $300,  oh  the  second  note  above 
mentioned,  and  halh  the  receipt  of  the  solicitor  and  attorney 
of  the  said  Parran,  for  the  sum  of  $100.38,  as  another  pay- 
ment thereon,  yet  the  said  Parran  hath  obtained  judgment  in 
the  Anne  Jlrundel  county  court,  for  the  whole  of  the  said 
second  note  against  your  orator,  and  hath  levied  execution  of 
fieri  facias  thereon,  on  the  property  of  your  orator,  and  is 
about  to  sell  the  same  by  the  sheriff  of  the  county,  at  a  forced 
sale,  for  cash,  within  a  few  days ;  that  the  purchase  money 
due,  as  aforesaid,  by  the  said  John  Parran,  should  be  applied 
in  the  first  place,  to  the  extinguishment  of  the  balance  due,  as 
aforesaid,  by  your  orator  to  the  said  Parran,  and  should  have 
been  so  made  payable,  as  to  enable  your  orator  to  have  the 
benefit  thereof;  or  the  said  Parran  should  be  enjoined  from 
proceeding  to  collect,  by  forced  sale,  this  balance  from  your 
orator  as  a  surety,  when  he  has,  by  his  own  proceedings, 
placed  the  primary  fund  for  the  payment  of  the  debt  of  the 
principal  debtor,  beyond  the  reach  of  your  orator ;  all  of  which 
is  contrary  to  equity  and  good  conscience,  and  tend  to  the 
manifest  injury  and  oppression  of  your  orator;  that  at  the  time 
of  the  death  of  the  said  James  Tongue,  he  had  already  cut 
down  and  ready  for  market,  large  quantities  of  valuable  timber 
and  wood,  the  proceeds  of  which,  according  to  the  agreement 
of  the  said  Tongue,  Parran  and  your  orator,  and  other  sure- 
ties, were  to  be  applied  to  the  payment  of  the  purchase  money 
of  the  said  land,  and  to  the  discharge  of  the  liabilities  of  your 
orator  and  other  sureties,  as  they  respectively  became  due; 


OP  MARYLAND.  323 


Welch  vs.  Parran,  et  a/.— 1844. 


that  the  said  Parran,  your  orator  is  informed  and  believes,  and 
therefore  charges,  is  collecting  the  said  wood  and  timber,  dis- 
posing of  the  same,  and  refuses  to  allow  the  proceeds  thereof, 
to  be  applied  according  to  the  agreement  aforesaid,  to  the  ex- 
tinguishment of  the  said  Parran's  judgment  aforesaid,  against 
your  orator,  although  the  same  will  be  fully  sufficient  for  that 
purpose;  that  the  said  timber  and  wood,  constitute  no  part  of 
the  aforesaid  purchase,  from  the  said  Pinckney,  as  trustee  as 
aforesaid,  nor  hath  the  said  Parran  any  right  thereto  whatso- 
ever, but  that  the  same  should  be  sold  and  accounted  for,  un- 
der the  authority  of  this  court.  In  consideration  whereof,  &c. 
prayer  for  an  application  of  the  payments,  injunction  against 
proceedings  at  law,  and  for  general  relief,  &c. 

With  the  bill,  the  complainant  filed  the  proceedings  in  equity, 
by  John  Parran,  for  the  sale  of  the  land,  to  pay  the  balance  of 
the  purchase  money. 

The  answer  of  John  Parran  alleged  and  admitted,  that  in 
the  month  of  December  1839,  he  did  sell  and  dispose  of,  to  a 
certain  James  Tongue,  now  deceased,  a  tract  of  land  called 
"Elkton  Head  Manor,"  at  and  for  the  sum  of  $8000.  He 
also  admits,  that  the  said  land,  at  the  time  of  the  said  sale, 
contained  a  large  quantity  of  wood,  with  a  small  proportion 
of  timber,  but  denies  that  it  was  covered  with  large  quantities 
of  valuable  timber ;  the  wood  on  the  said  land,  consisting 
then,  as  now,  for  the  most  part  of  pine  and  other  descriptions 
of  fire  wood.  This  respondent  also  denies,  that  he  allowed 
the  said  T>,  to  pay  for  the  same  in  extended  payments,  or  gave 
to  the  said  T.,  the  credits  on  which  said  land  was  sold  in  con- 
sideration of  an  expectation,  on  the  part  of  said  T.,  to  pay  for 
the  said  land  from  the  proceeds  of  sales  of  the  said  wood  and 
timber,  and  this  respondent  has  no  knowledge  whatever  of 
such  expectation,  if  such  ever  existed,  being  known  to  the 
complainant,  or  of  his  reliance  thereon,  when  he  consented  to 
become  one  of  the  said  T's  sureties,  for  a  portion  of  the  pur- 
chase money  of  said  land;  on  the  contrary,  this  respondent 
avers,  that  he,  this  respondent,  never  entered  into  any  sort  of 
agreement  whatever,  either  with  the  said  T.,  or  with  the  com- 


324  CASES  IN  THE  COURT  OF  APPEALS 

Welch  758.  Parran,  et  al— 1844.. 

plainant,  or  with  any  other  person  or  persons  whatsoever,  in 
relation  to  the  payment  of  said  purchase  money,  or  any  portion 
thereof,  with  the  proceeds  of  said  wood  and  timber;  nor  was 
there  any  understanding  whatever,  either  express  or  implied,  at 
the  time  of  said  purchase,  or  at  any  other  time,  between  this 
respondent  and  the  said  71,  or  any  other  person  in  relation 
thereto.  This  respondent  admits,  that  the  said  T.,  did  execute 
a  deed  of  trust,  of  the  land  so  purchased  by  him  from  this  respon- 
dent, to  Cephas  Simmons  and  Richard  Estep,  for  the  purposes 
therein  mentioned  ;  but  this  respondent  denies,  that  said  deed  of 
trust  was  executed,  with  his  consent,  or  that  he  was  in  any 
•way  privy,  or  party  to  the  same,  or  that  the  said  deed  was 
made  with  the  approbation  of  this  respondent,  as  the  com- 
plainant charges  in  his  said  bill.  This  respondent  further 
answering,  says,  that  he  admits,  that  the  said  complainant 
became  a  surety  for  the  said  71,  for  the  sum  of  $2000, 
parcel  of  the  purchase  money  of  said  land,  in  two  notes, 
each  for  the  sum  of  $1000,  dated  the  23rd  December  1839, 
and  payable,  the  first  of  said  notes,  on  the  1st  January 
1841,  with  interest  from  the  1st  January  1840;  and  the  second 
of  said  notes,  payable  on  the  1st  January  1842,  with  interest 
as  aforesaid.  He  also  admits,  that  Henry  C.  Drury,  of  Wil- 
liam, became  a  surety  of  said  Tongue,  on  two  others  of  said 
notes,  for  said  purchase  money,  each  for  the  sum  of  $1000,  of 
same  date,  and  payable,  the  first  of  said  notes,  on  1st  January 
1843,  as  charged  in  said  bill,  and  the  other  of  said  notes,  paya- 
ble on  the  1st  of  January  1847,  and  not  at  the  time,  charged 
in  said  bill.  He  also  admits,  that  a  certain  John  S.  Skinner, 
became  the  surety  of  said  71,  in  three  other  of  said  notes,  for 
the  said  purchase  money,  the  first  of  which  became  due  on  the 
1st  January  1844,  each  of  them  bearing  the  same  date  as  afore- 
said, and  each  for  the  sum  of  $1000.  The  secoud  of  said 
notes,  is  payable  1st  January  1845,  and  the  third  is  payable 
1st  January  1846,  and  not  as  the  complainant  charges  in  his 
said  bill,  due  and  payable  after  the  payment  of  the  other  notes 
aforesaid.  In  addition  to  the  aforesaid  notes,  this  respondent 
avers,  that  he  also  took  from  the  said  T.,  four  separate  notes, 


OP  MARYLAND.  325 


Welch  vs.  Parran,  et  al.— 1844. 


each  for  the  sum  of  $250,  without  any  security  whatever,  dated 
18th  March  1840,  and  payable,  the  first,  one  year  after  date, 
the  second,  eighteen  months  after  date,  the  third,  two  years 
after  date,  and  the  fourth,  three  years  after  date,  all  bearing 
interest  from  date,  for  the  balance  of  said  purchase  money,  all 
of  which  aforesaid  recited  notes,  amount  to  the  sum  of  $8000, 
the  whole  amount  of  the  purchase  money  for  said  land.     The 
complainant  makes  no  reference  "whatever,  in  his  said  bill,  to 
the  last  mentioned  four  notes  of  the  said  T. ;  but  this  respon- 
dent avers,  that  they  are  a  portion  of  the  notes,  which  were 
executed  by  the  said  T.,  to  him,  for  the  aforesaid  purchase 
money  of  said  land.     This  respondent  further  answering,  says, 
that  the  said  /.    T.,  departed  this  life,  intestate,  in   Calvert 
county,  about  the  time  charged  in  the  said  bill;  and  he  also 
admits,  that  Gideon  G.   Tongue,  James  Tongue,  and   Thomas 
R.  Tongue,  are  his  only  children,  and  sole  heirs  at  law,  and 
that  there  hath  been  no  administration  whatever  granted  on 
his  personal  estate.     And  this  respondent  avers,  that  the  said 
J.  T.,  at  the  time  of  his  death,  was  wholly  insolvent,  and  una- 
ble to  pay  his  debts,  and  this  respondent  having  no  other  se- 
curity for  the  payment  of  his  aforesaid  claim,  except  his  lien 
on  the  land  aforesaid,  and  the  security  afforded   by  the  notes 
aforesaid,  admits,  that  shortly  after  the  death  of  the  said  71., 
and  about  the  time  stated  in  the  complainant's  bill,  he  did  file 
his  bill  of  complaint,  in  this  court,  against  the  heirs  and  trus- 
tees aforesaid,  for  the  sale  of  the  aforesaid  land,  to  pay  the 
claim  aforesaid,  for  the  purchase  money  thereof.     And  that  a 
decree  was  passed  by  this  court,  for  the  sale  thereof,  in  the 
manner,  and  at  the  time  charged  in  the  complainant's  bill. 
That  Jonathan  Pinkney,  esq.,  was  appointed  the  trustee,  to 
sell  said  land,  and  that  on  the  9th  day  of  April  last  past,  this 
respondent  became  the  purchaser  thereof,  at  the  sale  thereof, 
made  by  the  said  trustee,  for  the  sum  of  $4000,  he  being  the 
highest  bidder  for  the  same.     That  said  sale  was,  in  all  re- 
spects, conducted  fairly,  and  this  respondent  has  complied  with 
the  terms  of  said  sale,  by  executing  his  notes  to  the  trustee 
aforesaid,  with  approved  security,  for  the  payment  of  the  said 


326  CASES  IN  THE  COURT  OF  APPEALS 

Welch  vs.  Parran,  et  nl.— 1844. 


purchase  money,  according  to  the  terms  of  the  said  decree,  as 
stated  in  the  complainant's  bill.  This  respondent  further  an- 
swering, admits,  that  the  first  of  the  notes  aforesaid,  executed 
by  the  said  complainant  and  Tongue,  for  $1000,  and  which 
became  due  as  aforesaid,  on  the  1st  January  1841,  hath  been 
fully  paid  and  satisfied ;  but  he  denies  that  he  ever  has  attempt- 
ed, in  any  shape  or  form,  to  compel  the  said  complainant,  to 
pay  him  the  said  note  a  second  time,  or  that  he  has  refused  to 
credit  him  for  the  same.  This  respondent  also  admits,  that 
the  sum  of  $300  has  been  paid  on  the  second  of  said  notes, 
and  that  in  addition  thereto,  the  complainant  paid  the  sum  of 
$100.38,  on  the  21st  October  1842,  on  account  of,  and  in  part 
of  said  second  note,  but  this  last  payment  was  made  to  the 
late  Somerville  Pinkney,  esq. ;  and  this  respondent  avers,  that 
he  informed  the  said  complainant,  before  he  filed  his  said  bill 
of  complaint,  that  he  should  have  credit  for  both  of  said  last 
mentioned  sums,  whenever  he  would  come  to  a  settlement 
with  this  respondent;  and  this  respondent  wholly  denies,  that 
he  ever  attempted,  by  a  forced  sale  or  in  any  other  manner, 
to  deprive  the  said  complainant  of  the  benefit  of  said  credits; 
on  the  contrary,  this  respondent  avers,  &c. 

This  respondent,  further  answering,  says,  that  in  conse- 
quence of  the  waste  and  injury  committed  on  the  land  sold  by 
him  to  the  said  Tongue,  by  cutting  down  of  wood,  timber,  &c., 
and  the  depreciation  which  has  taken  place  since  that  time  in 
the  value  of  real  estate  in  Maryland,  the  said  land  was  not 
worth  more  than  the  price  agreed  to  be  paid  by  this  respon- 
dent, at  the  sale,  by  the  trustee  aforesaid  ;  and  this  respondent 
apprehends,  that  at  least  one-half  of  the  original  sum  of  $1000, 
for  which  he  sold  it  to  said  Tongue,  will  be  lost  or  put  in  im- 
minent peril,  unless  the  sum  for  which  it  was  sold  to  this  re- 
spondent, by  the  trustee,  is  applied,  by  this  court,  to  the  pay- 
ment of  that  portion  of  the  said  purchase  money,  for  which 
the  said  Tongue  was  alone  responsible,  to  wit :  the  sum  of 
$1000,  with  interest,  and  the  sum  of  $3000,  for  which  a  cer- 
tain John  S.  Skinner  alone  was  surety,  and  in  consequence  of 
this  apprehension  on  the  part  of  this  respondent,  he  directed 


OF  MARYLAND.  327 


Welch  vs.  Parran,  et  al. — 1844. 


the  said  trustee,  Jonathan  Pinkney,  at  the  time  this  respondent 
purchased  said  land  to  make  that  application,  (if  it  were  pos- 
sible for  him  to  do  so,)  of  the  said  purchase  money.  For  the 
sum  of  $1000,  with  the  interest  due  thereon,  this  respondent 
took  no  security  from  the  said  Tongue;  and  for  the  sum  of 
$3000,  this  respondent  took  as  security,  John  S.  Skinner, 
esq.j  who,  at  that  time,  was  living  in  the  State,  and  thought 
to  be  in  good  circumstances,  but  since  then,  has  removed  from 
the  State,  and  now  lives  in  another  jurisdiction,  and  believed 
to  be  not  in  a  very  solvent  condition,  as  this  respondent  has 
been  informed,  and  believes,  so  that  your  respondent  insists, 
that  equity  and  a  faithful  observance  of  the  sanctity  and  integ- 
rity of  contracts  require,  that  such  an  application  should  be 
made  of  the  said  sum  of  $4000,  so  as  aforesaid  agreed  to  be 
paid  by  this  respondent  for  said  land,  as  will  ensure  to  this 
respondent,  the  payment  in  full,  of  his  original  purchase  money, 
due  him  as  aforesaid,  from  the  said  T.  and  his  sureties. 
Your  respondent  therefore  insists,  that  his  aforesaid  purchase 
shall  be  applied  to  the  payment  of  the  $1000,  due  from  the 
said  Tongue,  individually,  for  which  he  has  no  security ;  and 
in  the  second  place,  to  the  payment  of  that  portion  of  the  said 
debt  of  Tongue,  on  which  John  S.  Skinner  is  surety,  the  se- 
curity being  at  least,  extremely  doubtful.  And  this  application 
of  said  purchase  money,  this  respondent  humbly  prays  may  be 
made  by  this  court,  that  being  the  only  application  of  it  which 
will  enable  him  to  realize  his  entire  claim.  That  portion  of 
this  respondent's  claim  secured  by  the  complainant,  and  the 
said  Drury  being,  in  the  estimation  of  this  respondent,  entirely 
solvent.  This  respondent  denies  that  he  has,  by  any  act  of 
his  own,  not  warranted  or  sanctioned  by  law  and  equity, 
placed  the  primary  fund  for  the  payment  of  the  debt  of  the 
principal  debtor,  beyond  the  reach  of  the  complainant,  as 
surety.  If,  by  this  allegation,  the  complainant  means,  that  by 
his  filing  his  bill  for  the  sale  of  said  land,  and  his  becoming 
the  purchaser  thereof,  under  a  decree  of  this  court,  he  has 
placed  the  land,  itself,  beyond  the  reach  of  the  complainant, 
it  is  most  true,  that  such  is  the  result,  but  this  respondent 


328  CASES  IN  THE  COURT  OF  APPEALS 

Welch  vs.  Parran,  et  aL— 1844. 

insists,  that  such  a  result  is  not  his  act,  but  the  act  of  the  law, 
and  one  which  the  complainant  could  easily  have  prevented, 
by  his  attending  the  sale,  and  either  buying  the  land  himself, 
or  seeing  that  it  sold  for  its  real  value ;  if,  in  his  judgment, 
this  respondent's  bid  was  under  its  real  value,  which  is  not 
pretended,  however,  by  the  complainant  in  his  bill,  &c. 

The  Chancellor,  (BLAND,)  upon  the  motion  of  the  defen- 
dant, Parran,  after  his  co-defendant  had  filed  his  answer, 
dissolved  the  injunction,  and  the  complainant,  R.  Welch,  of 
Benj.,  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  SPENCE,  J. 

By  RANDALL  and  ALEXANDER  for  the  appellant,  and 
By  T.  F.  BOWIE  for  the  appellees. 

ARCHER,  J.,  delivered  the  opinion  of  this  court. 

The  doctrines  in  reference  to  the  application  of  payments, 
have  been  elaborately  examined  by  the  solicitors ;  but  we  ap- 
prehend, that  so  far  as  regards  the  interests  of  the  respondent, 
in  the  proceeds  of  sale,  refered  to  in  the  proceedings,  he  can 
have  no  interest  in  these  questions.  As  a  vendor  of  the  land, 
he  had,  as  his  security,  his  lien  for  the  purchase  money,  and 
the  notes  given  by  Tongue  with  the  security  of  the  complain- 
ant, Drury  and  Skinner  furnished  additional  security.  He 
is  surely  entitled  to  full  payment  from  the  one  security,  or  the 
other;  or  if  one  is  insufficient,  from  the  other.  Unless  this  was 
the  object  of  the  parties,  why  was  the  security  taken?  The 
land  may  be  deteriorated  in  the  hands  of  the  vendee,  by  ne- 
glect, mismanagement,  or  waste,  or  by  the  depression  of  lands 
in  the  market;  to  guard  against  such  possible  results,  security 
is  asked,  that  the  vendor  shall  in  all  events  be  safe,  and  obtain 
his  purchase  money. 

Now,  it  is  asked,  that  the  proceeds  of  the  sale  of  the  lands, 
which  do  not  exceed  more  than  one  half  of  the  purchase 
money  for  which  the  land  was  originally  sold,  should  be  ap- 
plied either  to  the  iirst  note  which  falls  due,  or  rateably  applied 


OF  MARYLAND.  329 


Welch  vs.  Parran,  et  al. — 1844. 


to  all  the  notes.  The  consequence  of  such  an  application 
might  be,  that  the  vendor  would  lose  the  very  object  which  it 
had  been  his  design,  and  the  design  of  the  parties  to  secure; 
one  half  the  purchase  money  may  be  insufficiently  secured, 
and  that  half  maybe  on  the  last  notes  that  are  due.  If,  there- 
fore, the  application  is  made  to  \\iefirst  notes  that  are  due,  the 
vendor  loses  one  half  his  purchase  money,  and  the  same  will 
be  the  result,  in  the  like  circumstances,  if  there  should  be  a 
rateable  application  of  the  proceeds  among  the  securities. 

The  case  before  us  is  unlike  the  case  of  a  payment  made 
by  the  vendee.  The  property  has  been  sold  upon  which  the 
vendor  had  his  lien,  and  the  sale  has  established  the  fact,  that 
the  vendee's  equitable  right  in  the  land,  was  without  any  value; 
the  sale  not  having  produced  a  sum  sufficient  to  pay  the  ven- 
dor's equitable  lien.  The  product  of  the  sale  should  be  applied 
under  the  direction  of  the  Court  of  Chancery,  in  such  a  man- 
ner as  would  give  security  to  the  vendor,  which  could  be  done, 
in  this  case,  by  enquiring  into  the  pecuniary  condition  of  the 
sureties.  If  any  one  of  the  sureties  should  be  found  insolvent 
and  unable  to  pay,  then  the  Court  of  Chancery  would  secure 
the  vendor,  by  applying  so  much  of  the  proceeds  of  sale  as 
would  extinguish  the  obligation  thus  endangered.  In  no  other 
manner  could  justice  be  done  to  the  vendor.  If  instead  of  a 
sale  of  the  land,  the  equitable  right  of  the  vendee  had  been 
alone  sold,  the  case  would  then  have  stood  in  the  same  condi- 
tion as  if  the  vendee  had  made  a  payment  on  the  land,  and 
we  should  then  have  been  called  upon  to  determine,  among  the 
sureties,  the  proper  and  legal  application  of  the  purchase 
money. 

Time  may  be  occupied  in  ascertaining  the  condition  of  the 
sureties.  Shall  the  complainant  be  compelled  to  stay  his  col- 
lection of  the  obligations  given  him  for  the  purchase  money, 
until  these  enquiries  be  made?  As  they  become  due  we 
think  he  has  a  right  to  enforce  their  payment,  and  such  of  the 
sureties  as  pay  may  be  subrogated  to  the  rights  of  the  vendor, 
to  the  extent  of  any  interest  they  may  be  ascertained  to  have 
in  the  purchase  money. 
42  v.2 


330  CASES  IN  THE  COURT  OF  APPEALS 

Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely. — 1844. 

It  may,  on  investigation,  be  ascertained,  that  some  one  or 
more  of  the  sureties  may  be  insolvent,  in  which  event  there 
would  be  nothing  to  which  the  complainant  could  be  subro- 
gated;  and  it  may  eventuate,  that  all  are  solvent,  and  able  to 
pay;  should  this  be  the  fact,  then  the  proceeds  of  sale,  after 
payment  of  the  unsecured  notes,  should  be  rateably  distributed 
in  extinguishment  of  the  obligations  to  which  there  are  sure- 
ties. 

We  are  of  opinion,  the  Chancellor  was  right  in  dissolving 
the  injunction.  It  appears  that  the  credits  claimed  on  the 
judgments,  the  vendor  was  willing  to  have  made,  and  direction 
had  been  given  to  that  effect.  On  this  ground  therefore,  there 
would  have  been  no  foundation  for  the  injunction  ;  and  as  the 
credits  have  now  been  actually  given,  no  injustice  can  be  done 
the  appellant  by  affirming  the  decree, 

DECREE  AFFIRMED. 


M.  A.  GIST  AND  T.  P.  SCOTT,  ADM'RS  OF  WILLIAM  GIST, 
vs.  THOMAS  DRAKELY. — December  1844. 

Upon  the  back  of  the  notes  of  a  corporation  under  its  seal,  payable  to  the 
order  of  K .,  he  and  G.,  endorsed  their  names,  over  which  D.,  an  assignee 
for  value,  wrote  as  follows  :  "For  value  received,  we  jointly  and  severally 
promise  D.,  to  pay  him  the  amount  of  the  within,  should  the  Company 
make  default  in  the  payment  thereof."  On  proof  that  the  Company  gave 
the  notes  in  the  course  of  their  business,  and  6?.,  their  debtor,  credit  in 
account  for  their  amount,  demand  of  payment  from,  and  refusal  by  the 
Company,  and  immediate  notice  to  G.,  in  an  action  of  assumpsit  by  Z>. 
against  C.,  HELD,  he  was  entitled  to  recover. 

The  right  of  action  was  not  on  the  sealed  instrument,  but  on  the  endorse- 
ment, a  collateral  or  distinct  contract. 

Upon  negotiable  paper,  the  holder  can  only  write  over  the  signature  of  the 
endorser,  such  an  endorsement  as  conforms  to  the  nature  of  the  instru- 
ment, viz  :  to  point  out  the  person  to  whom  the  bill  or  note  is  to  be  paid. 

In  actions  upon  notes  not  negotiable,  the  intention  of  the  parties  is  to  be 
considered,  and  effect  is  to  be  given  to  that  intention,  if  no  rule  of  law  is 
violated. 

When  a  defendant,  for  a  valuable  consideration,  agreed  to  become,  and  by 
endorsing  a  note  or  single  bill,  not  negotiable  in  point  of  law,  designed  to 


OF  MARYLAND.  331 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely.— 1844. 

become  security  for  the  money  expressed  in  it,  he  is  responsible  for  its 
payment. 

Parties  to  contracts  are  assumed  to  know  the  liabilities  imposed  on  thorn  by 
the  law,  and  juries  are  not  from  evidence  to  infer,  their  ignorance  of  such 
liability. 

Where  a  corporation  executes  a  note  which  its  charter  does  not  authorise,  the 
payee  may,  for  value,  stipulate  with  a  third  party  that  it  shall  be  paid, 
and  will  not  then  be  permitted  to  urge  the  invalidity  of  the  Company  to 
make  it.  He  was  capable  to  bind  himself  to  pay  the  debt,  if  it  should  not 
be  paid  at  maturity 

The  rule  of  Baltimore  county  court,  which  requires  that  the  whole  testimony 
intended  to  be  produced  by  plaintiff  and  defendant  shall  be  offered,  before 
any  question  of  law  is  raised,  except  objections  to  the  competency  of  testi- 
mony, is  such  a  rule  as  that  court  has  power  to  make. 

When  a  party  fails  to  offer  any  evidence,  at  the  time  he  ought  to  have  offered 
it,  under  the  foregoing  rule,  this  court  will  not  assume  that  it  was  then  out 
of  his  reach,  or  was  afterwards  .discovered. 

The  observance  of  such  rule  may  be  dispensed  with,  by  consent. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  trespass  on  the  case,  brought  on  the 
26th  August  1842,  by  the  appellee,  against  William  Gist,  the 
intestate  of  the  appellants,  who  died  pending  the  action. 

The  plaintiff  declared, 

1st.  Upon  the  instruments  given  in  evidence,  as  negotiable 
notes,  endorsed,  failure  to  pay,  and  notice,  &c. 

2nd.  Upon  the  common  counts. 

3rd.  Upon  the  notes  of  the  Eutaw  Company,  given  in  evi- 
dence, assigned  by  David  Keener,  for  value  to  the  plaintiff. 
And  whereas  also,  heretofore,  to  wit,  on  the  first  day  of  June, 
in  the  year  of  our  Lord,  eighteen  hundred  and  forty-one,  at 
the  county  aforesaid,  in  consideration  that  the  said  plaintiff,  at 
the  special  instance  and  request  of  the  said  defendant,  would 
receive  from  the  Eutaw  Company  a  certain  writing,  obligatory 
of  the  said  Eutaw  Company,  sealed  with  its  seal,  the  date 
whereof,  is  the  day  and  year  in  this  count  aforesaid,  whereby 
said  Eutaw  Company  promised  to  pay,  six  months  after  the  date 
thereof,  to  the  order  of  David  Keener,  $1826.81,  for  value 
received ;  and  by  the  said  David  Keener,  after  the  making  and 
sealing  thereof,  and  before  the  same  became  due  and  payable, 
to  wit,  on  the  day  and  year  in  this  count  aforesaid,  to  wit,  at 


332  CASES  IN  THE  COURT  OF  APPEALS 

Gist  and  Scott  adtn'rs  of.  Gist,  vs.  Drakely. — 1844. 

the  county  aforesaid,  ordered  to  be  paid  and  assigned  to  the 
said  plaintiff,  by  assignment  in  writing,  signed  by  the  said 
David  Keener,  who  was  then  and  there  authorised  to  make  the 
same,  at  and  for  the  sum  therein  specified,  and  give  such  value 
therefor;  he,  the  said  defendant,  then  and  there  undertook,  and 
faithfully  promised  the  said  plaintiff,  to  pay  him  the  said  sum 
of  money  in  the  said  writing  obligatory  specified,  upon  default 
of  the  said  Eutaw  Company,  so  to  do,  when  the  said  sum  of 
money  in  the  said  writing  obligatory  specified,  should  become 
due  and  payable.  And  the  said  plaintiff  avers,  that  he,  con- 
fiding in  the  said  last  mentioned  promise  and  undertaking  of 
the  said  defendant,  afterwards,  to  wit,  on  the  day  and  year  in 
this  count  aforesaid,  did  actually  receive  from  the  said  Eutaw 
Company  the  said  writing  obligatory,  at  and  for  the  sum  there- 
in mentioned,  and  gave  such  value  therefor,  to  wit,  at  the 
county  aforesaid.  And  the  said  plaintiff  in  fact  saith,  that  the 
said  Eutaw  Company  did  not,  when  the  said  sum  of  money 
in  the  said  writing  obligatory  specified,  became  due  and  pay- 
able, to  wit,  on  the  first  day  of  December,  in  the  year  eighteen 
hundred  and  forty-one,  or  at  any  other  time  before  or  after- 
wards, pay  the  same,  or  any  part  thereof,  to  the  said  plaintiff, 
but  wholly  neglected  and  refused  so  to  do,  and  made  default 
therein,  to  wit,  at  the  county  aforesaid,  (although  the  said 
Eutaw  Company  was  requested  by  the  said  plaintiff  so  to  do, 
to  wit,  on  the  day  and  year  last  aforesaid,  to  wit,  at  the  county 
aforesaid,)  of  all  which  said  premises,  the  said  defendant  af- 
terwards, to  wit,  on  the  day  and  year  last  aforesaid,  at  the  coun- 
ty aforesaid,  had  notice.  Yet  the  said  defendant,  not  regard- 
ing his  said  last  mentioned  promise  and  undertaking,  but,  &c. 
4th.  In  the  further  consideration,  that  the  said  plaintiff,  at 
the  special  instance  and  request  of  the  said  defendant,  would 
receive  from  the  said  Eutaw  Company  a  certain  other  writing 
obligatory  of  the  said  Eutaw  Company,  sealed  with  its  seal, 
the  date  whereof,  is  the  day  and  year  in  this  count  aforesaid, 
whereby  the  said  Eutaw  Company,  promised  to  pay,  six  months 
after  the  date  thereof,  to  the  order  of  David  Keener,  $826.81, 
for  value  received ;  and  by  the  said  David  Keener,  after  the 


OF  MARYLAND.  333 


Gist  and  Scott  adm'rsof  Gist,  r>a.  Drakely. — 1844. 

making  and  sealing  thereof,  and  before  the  same  became  due 
and  payable,  to  wit,  &c.,  ordered  to  be  paid  and  assigned  to 
the  said  plaintiff  by  assignment  in  writing,  signed  by  the  said 
David  Keener,  (who  was  then  and  there  authorised  to  make 
the  same,)  at  and  for  the  sum  therein  specified,  and  give  such 
value  therefor,  he,  the  said  defendant,  then  and  there  under- 
took and  faithfully  promised  the  said  plaintiff,  to  pay  him  the 
said  sum  of  money,  in  the  said  last  mentioned  writing  obliga- 
tory specified,  upon  default  of  the  said  Eutaw  Company  so  to 
do,  when  the  said  sum  of  money  in  the  said  last  mentioned 
writing  obligatory  specified,  should  become  due  and  payable. 
And  the  said  plaintiff  avers,  that  he,  confiding  in  the  said  last 
mentioned  promise  and  undertaking  of  the  said  defendant,  af- 
terwards, to  wit,  did  actually  receive  from  the  said  Eutaw 
Company  the  last  mentioned  writing  obligatory,  at  and  for  the 
sum  therein  mentioned,  and  gave  such  value  therefor,  to  wit, 
at,  &c.  And  the  said  plaintiff  in  fact  saith,  that  the  said 
Eutaw  Company,  did  not,  when  the  said  sum  of  money  in  the 
said  last  mentioned  writing  obligatory  specified  became  due 
and  payable,  to  wit,  on,  &c.,  or  at  any  other  time  before  or 
afterwards,  pay  the  same  or  any  part  thereof  to  the.said  plain- 
tiff, but  wholly  neglected  and  refused  so  to  do,  and  made  de- 
fault therein,  to  wit,  &c.,  (although  the  said  Eutaw  Company 
was  requested  by  the  said  plaintiff  so  to  do,  to  wit,  &c.,)  of 
all  which  said  premises,  the  said  defendant,  afterwards,  to 
•wit,  &c.,  had  notice. 

5th  and  6th  counts  were  similar  to  the  4th  count. 

The  defendant  pleaded  non  assumpsit. 

The  jury  found  a  verdict  for  the  plaintiff. 

IST.  EXCEPTION.  The  plaintiff  to  support  the  issue  on  his 
part,  offered  in  evidence  the  two  sealed  bills,  or  notes  and  pro- 
tests, following: 

"$826.81.  Baltimore,  June  1st,  1841.  Six  months  after 
date,  the  Eutaw  Company  promise  to  pay  to  the  order  of  David 
Keener,  $826.81,  for  value  received.  Witness  the  seal  of  the 
company,  attested  by  the  signature  of  the  president, 

(Seal.)  DAVID  KEENER,  President. 


334  CASES  IN  THE  COURT  OF  APPEALS 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Urakely. — 1844. 

"4th  December  1841.  Pro't.  non-pay't.,  H.  S.  S.,  n.  p., 
due  J  Dec'r.,  E." 

Endorsed,  "DAVID  KEENER,"  "WILLIAM  GIST,"  "Tno's. 
DRAKELY,"  "B.  F.  GARDNER." 

The  notarial  protest,  dated  4th  December  1841,  shows  that 
the  above  instrument  was  presented  "at  the  place  of  business 
of  the  makers  thereof,  demanded  payment  of  its  contents,  and 
icceived  for  answer,  "it  cannot  be  paid  at  present."  "And 
that  on  the  same  day,  the  notary  addressed  a  written  notice  to 
each  of  the  endorsers  of  the  said  promissory  note,  informing 
them  it  ha-d  not  been  fully  paid  by  the  makers  thereof,  and  that 
they  severally  would  be  held  responsible  for  its  payment,  and 
left  those  for  David  Keener,  William  Gist  and  B.  F.  Gardner, 
at  their  respective  places  of  business,  and  directed  one  to 
Thomas  Drakely,  Wheeling,  Virginia,  deposited  it  in  the  post 
office  in  this  city. 

"$826.81.  Baltimore,  June  21st,  1841.  Six  months  after 
date,  the  Eutaw  Company  promises  to  pay  to  the  order  of  David 
Keener,  $826.81,  for  value  received.  Witness  the  seal  of  the 
company,  attested  by  the  signature  of  the  president, 

(Seal.)  DAVID  KEENER,  President. 

D.  1,016,  Dec.  fi,  1841.  Pro't.  non-pay't.  24th  Dec.  1841." 

Endorsed,  "DAVID  KEENER,"  "WILLIAM  GIST,"  "Tno's. 
DRAKELY,"  "W.  &  S.  WYMAN." 

The  protest  of  this  note  showed  a  demand  and  non-pay- 
ment as  before,  and  also,  notices  for  David  Keener,  and  W.  fy 
S.  Wyman,  delivered  to  them.  Notice  for  Wm.  Gist  and 
TAo's.  Drakely,  left  at  their  places  of  business. 

The  hand  writing  of  the  drawer  and  endorsers  thereon  be- 
ing admitted,  having,  before  offering  the  same,  filled  over  said 
endorsements,  upon  each  of  said  bills,  which  were  in  blank, 
the  words  following,  viz:  "For  value  received,  we  jointly  and 
severally  promise  Thomas  Drakely,  to  pay  him  the  amount  of 
the  within  bill  obligatory,  should  the  Eutaw  Company,  the 
obligee  therein  named,  make  default  in  the  payment  thereof, 
when  the  same  shall  become  due." 


OF  MARYLAND.  335 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely.— 1844. 

The  plaintiff  further  to  support  the  issue  on  his  part  joined, 
proved  by  William  J.  Cole,  a  competent  witness,  that  the  sin- 
gle bills,  hereinbefore  inserted,  were  placed  in  his  hands  by 
Mr.  Drakely,  the  plaintiff,  for  collection,  some  time  before  the 
institution  of  this  suit;  that  soon  after  receiving  them,  he  met 
William  Gist,  the  defendant,  and  told  him  that  he  had  the  bills; 
Gist  thereupon  inquired  of  witness,  whether  they  were  some 
of  those  given  for  cotton?  Witness  replied,  that  he  did  not 
know,  and  asked  Gist,  what  the  Company  wanted  with  cotton? 
to  which  he  answered,  for  packing  their  machinery.  He 
(witness,)  further  proved,  that  Gist  (the  defendant,)- stated,  in 
the  same  conversation,  that  David  Keener  and  himself,  had 
been  appointed  a  committee,  to  raise  money  for  the  use  of  the 
Eutaw  Company,  and  in  consideration,  that  he  would  endorse 
said  bills,  with  others,  as  the  means  of  raising  money  for  it, 
the  Company  agreed,  to  give  him  a  credit  upon  the  claims  of 
the  Company  against  him,  he,  the  said  Gist,  being  at  the  time, 
the  debtor  of  the  Company,  to  a  considerable  amount;  that  he 
did  endorse  said  bills  and  others,  for  said  purpose,  under  said 
agreement,  and  upon  which  money  had  been  raised.  The 
witness  further  proved,  that  in  a  second  interview,  between 
said  Gist  and  himself,  he,  the  witness,  stated  to  said  Gist,  that 
he  had  examined  the  books  of  said  Company,  and  found,  that 
his  indebtedness  thereto,  would  cover  all  his  liabilities  incur- 
red, to  which  Gist  replied,  that  he  thought  he  had  gone  fur- 
ther; that  he  intended  to  pay  the  bills  in  the  hands  of  witness, 
but  wished  him  to  go  against  the  Company  and  Keener  first; 
and  promised,  that  he  would  give  witness  a  judgment,  with  a 
stay  of  execution,  for  the  amount  of  the  bills;  that  at  a  third 
interview,  witness  told  Gist,  (the  defendant,)  that  Keener  had 
consented  to  confess  a  judgment;  Gist  said  he  did  not  think 
he  owed  as  much  as  he  had  become  responsible  for,  on  account 
of  said  Company,  but  that  he  would  confess  a  judgment  upon 
the  bills;  that  Gist  nevertheless,  seemed  to  hesitate  to  make 
such  confession,  when  witness  left  the  nar.  and  order,  for  the 
judgment  to  be  confessed,  with  T.  P.  Scott,  esq.,  Gist's  at- 
torney. Witness  thinks,  that  Gist  mentioned  Tiffany's  name, 


336  CASES  IN  THE  COURT  OF  APPEALS 

Giat  and  Scott  adm'rs  of  Gist,  »s.,Drakely.— 1844. 

in  connexion  with  the  cotton.  Witness  further  proved,  that 
in  his  second  interview  with  Gist,  said  Gist  stated,  that  the 
Eutaw  Company  and  Keener,  had  severally  made  deeds  of  trust 
of  their  property,  for  the  benefit  of  their  creditors;  that  this 
statement  was  made  before  the  institution  of  the  present  suit. 

The  plaintiffthen  offered  in  evidence  the  judgments,  which, 
upon  the  said  two  single  bills,  he  had  obtained  against  Keener 
and  the  said  Eutaw  Company,  in  Baltimore  county  court. 

"Baltimore  county  court,  September  term,  1842.  Thomas 
Drakely,  vs.  David  Keener.  Case,  &c.  23rd  December  1842. 
Judgment  by  confession  for  $4,000,  damages  in  nar.  and  costs ; 
to  be  released  on  payment  of  $1657.12,  with  interest,  from 
24th  December  1841,  and  costs.  Plaintiff's  costs,  $8.03£. 
Test,  THOMAS  KELL,  Clerk." 

"Baltimore  county  court,  January  term,  1843.  Thomas 
Drakely  vs.  the  Eutaw  Company.  Case,  &c.  2nd  January 
1843.  Judgment  by  confession  for  $4,000,  damages  in  nar. 
and  costs;  to  be  released  on  payment  of  $1657.12,  with  in- 
terest, from  24th  December  1841,  and  costs.  Plaintiff's  costs, 
$7.83£.  Test,  THOMAS  KELL,  Clerk." 

Whereupon,  no  evidence  being  then  offered,  on  the  part  of 
the  defendant,  the  plaintiff  offered  to  the  court  the  following 
prayer: 

If  the  jury  shall  find  from  the  evidence,  that  the  single 
bills,  upon  which  the  present  suit  is  brought,  were  executed  by 
the  Eutaw  Company,  and  endorsed  by  David  Keener  and  Wil- 
liam Gist,  by  an  agreement  with  said  Company,  for  the  purpose 
of  raising  money  thereon,  or  purchasing  goods,  and  with  a 
view,  by  said  endorsements,  of  giving  a  credit  to  said  Com- 
pany; and  if  they  shall  further  find,  that  William  Gist,  the 
defendant,  undertook  and  agreed  with  said  Company,  to  make 
such  endorsement,  in  consideration,  that  said  Company  would 
give  him  a  credit  for  the  amount  of  his  responsibilities  thus 
assumed,  upon  a  claim  of  said  Company  against  said  Gist; 
and  shall  further  find,  that  when  said  single  bills  became  due, 
payment  was  demanded,  and  refused  by  said  Company,  and 
that  notice  thereof  was  given  to  said  Gist,  the  defendant,  on 


OF  MARYLAND.  337 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely.— 1844. 

the  days  shewn  by  the  protests  in  evidence  in  this  cause,  that 
then  the  plaintiff  is  entitled  to  recover  the  amount  of  said  bills, 
with  interest,  from  the  time  the  same  became  due. 

The  defendant  offered  to  the  court  the  following  prayers: 

1.  That  the  plaintiff  is  not  entitled  to  recover,  under  the 
first  count  in  the  nar.  because  the  bills  offered  in  evidence,  are 

not  promissory  notes. 

2.  That  the  plaintiff  is  not  entitled  to  recover,  under  the 
counts  for  work  and  labor,  &c.,  or  for  materials  furnished,  &c., 
because  there  is  no  evidence,  that  the  plaintiff  performed  any 
work  and  labor  for  the  defendant,  or  furnished  any  material,  as 
charged  in  said  counts. 

3.  That  the  plaintiff  cannot  recover  under  the  count  for 
goods  sold  and  delivered,  because  there  is  no  evidence  in  sup- 
port of  said  count. 

4.  That  the  plaintiff  cannot  recover  under  the  money  counts, 
because  there  is  no  evidence,  that  the  plaintiff  lent  any  money 
to  the  defendant,  or  that  the  defendant  received  any  money 
for  the  plaintiff. 

5.  That  if  the  jury  believe  from  the  evidence,  that  the  de- 
fendant, when  he  wrote  his  name  upon  the  back  of  the  bills 
offered  in  evidence,  intended  to  assume  the  responsibility  of 
an  endorser,  of  a  commercial  negociable  instrument,  in  the 
order  in  which  said  bill  was  endorsed,  and  that  the  plaintiff  so 
understood  the  said  intended  contract  when  he  received  said 
bills,  then  the  plaintiff  cannot  recover  in  this  suit. 

6.  Because  there  is  no  evidence  of  any  agreement  or  au- 
thority from   the  defendant,  with  the  plaintiff,  under  or  by 
which,  the  plaintiff  can  write  the  guarantee,  proposed  to  be 
written  by  him,  over  the  name  of  the  defendant. 

7.  Because  there  is  no  evidence  of  any  contract,  between  the 
plaintiff  and  defendant  in  this  cause,  and  the  promise  and  un- 
dertaking of  the  defendant,  offered  in  evidence  by  the  plaintiff, 
was  a  nude  pact,  and  void  for  want  of  present  consideration 
when  it  was  made. 

8.  Because  the  promise  of  the  defendant,  to  pay  the  said 
writing  obligatory)  if  the  jury  shall  find  such  promise,  was  a 

43     v.2 


338  CASES  IN  THE  COURT  OF  APPEALS 

Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely. — 1844. 

promise  and  undertaking,  to  pay  and  answer  for  the  debt  of 
another  person,  and  there  is  no  evidence,  that  the  agreement 
and  consideration  for  such  promise,  was  made  in  writing,  and 
signed  by  the  said  defendant. 

9.  Because  the  contract  offered  in  evidence,  is  essentially 
different  and  variant  from  the  contract  declared  on. 

10.  Because  there  is  no  evidence,  that  the  plaintiff  used 
due  diligence,  to  collect  the  debt  mentioned  in  said  writing 
obligatory. 

11.  Because  the  only  evidence  offered  by  the  plaintiff,  to 
charge  the  defendant,  is  evidence  of  a  joint  contract  and  re- 
sponsibility, by  Keener  and  Gist,  and  it  being  in  evidence,  that 
the  plaintiff  has  recovered  judgment  against  Keener,  the  obli- 
gation of  the  said  Gist,  if  it  ever  existed,  has  been  discharged. 

12.  That  the  assignment  of  the  said  bills,  by  Gist  to  the 
plaintiff,  not  having  been  made  in  conformity  with  the  provi- 
sions of  the  act  of  1763,  ch.  23,  sec.  9,  the  plaintiff  cannot 
recover  against  the  defendant  Gist,  the  assignor. 

13.  If  the  jury  believe  from  the  evidence,  that  the  writing 
obligatory,  offered  in  evidence  by  the  plaintiff,  was  made  and 
put  in  circulation,  for  the  purpose  of  raising  money  for  the  use 
of  the  Eutaw  Company,  then  the  plaintiff  is  not  entitled  to  re- 
cover, because  the  Eutaw  Company  had  no  power  or  authority 
under  its  charter,  to  make,  issue,  or  put  in  circulation,  the 
said  writing  obligatory,  and  the  pretended  contract,  was  merely 
void,  and  the  promise  of  the  defendant,  if  the  jury  should  find 
such  promise,  is  void  for  want  of  consideration. 

14.  If  the  jury  believe  from  the  evidence,  that  the  bills 
offered  in  evidence,  were  made  by  the  Eutaw  Company,  and 
passed  to  the  plaintiff,  for  the  purchase  of  cotton,  by  the  En- 
taw  Company,  and  for  its  use,  from  the  plaintiff,  then  the  plain- 
tiff is  not  entitled  to  recover  in  this  action,  because  the  said 
Eutaw  Company,  had  no  authority  to  make  such  a  contract. 

The  court,  (PURVIANCE,  A.  J.,)  granted  said  prayer,  offered 
on  the  part  of  the  plaintiff,  and  likewise,  the  1st,  2nd,  3rd  and 
4th  prayers  offered  on  the  part  of  the  defendant,  and  rejected 
the  5th,  6th,  7th,  8th,  9th,  10th,  llth,  12th,  13th  and  14th 


OF  MARYLAND.  339 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely.— 1844. 


prayers,  offered  by  the  said  defendant;  to  which  opinion  of 
the  court  to  the  jury,  granting  said  prayer  of  the  plaintiff, 
and  rejecting  said  prayers  of  the  defendant,  the  defendant 
excepted. 

SND  EXCEPTION.  At  the  trial  of  the  above  cause,  the  plain- 
tiff having  offered  in  evidence  to  the  jury,  the  testimony  stated 
in  the  first  bill  of  exceptions,  and  no  testimony  being  offered 
on  the  part  of  the  defendant,  the  prayers  stated  in  said  first 
bill  of  exceptions,  having  been  submitted  by  the  plaintiff  and 
defendant,  and  discussed  before  the  court,  and  the  court  hav- 
ing pronounced  an  opinion  and  decision  thereon,  the  defendant 
then  offered  to  swear  David  Keener,  Philip  H.  Coakley  and 
John  J.  Harrod,  for  the  purpose  of  proving,  that  the  bills  offer- 
ed in  evidence  by  the  plaintiff,  were  made  and  endorsed  for 
the  accommodation  of  the  Eutaw  Company,  and  were  taken 
and  discounted  by  the  plaintiff  at  an  usurious  rate  of  interest. 
To  the  right  of  the  defendant,  at  this  stage  of  the  cause,  to 
offer  which  said  evidence,  the  plaintiff  objected,  and  relied  in 
support  of  his  objection  on  the  twenty-fifth  rule  of  the  court, 
and  the  court  refused  to  permit  said  evidence,  under  the  cir- 
cumstances stated,  to  go  to  the  jury.  To  which  opinion  and 
refusal,  the  defendant  excepted. 

It  was  agreed,  that  the  charter  of  the  Eutaw  Company, 
may  be  read  at  the  trial  of  this  cause,  in  the  Court  of  Appeals, 
from  the  printed  statute  books,  and  that  the  25th  rule  of  Bal- 
timore county  court,  may  be  read  from  the  printed  rules. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS,  SPENCE  and  MAGRUDER,  J. 

By  LUCAS  and  T.  P.  SCOTT  for  the  appellants,  and 
By  J.  H.  B.  LATKOBE  for  the  appellees. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

The  Eutaw  Company,  by  two  instruments,  to  which  its  cor- 
porate seal  was  affixed,  promised  to  pay  "to  the  order  of  Da- 
vid Keener"  the  sum  of  money  expressed  in  each  of  them. 


340  CASES  IN  THE  COURT  OF  APPEALS 

Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely. — 1844. 

On  the  back  of  these  instruments,  David  Keener  first,  and 
afterwards  Gist,  (the  original  defendant  in  the  court  below,) 
wrote  each  of  them  his  name.  Before  offering  these  sealed 
instruments  in  evidence,  the  blank  that  was  left  over  their 
names,  was  filled  up  with  these  words.  "For  value  received. 
We  jointly  and  severally,  promise  David  Drakely,  to  pay  hire 
the  amount  of  the  within  writing  obligatory,  should  the  Eutaw 
Company,  the  obligees  therein  named,  make  default  in  the  pay- 
ment thereof,  when  the  same  shall  become  due."  Upon  this, 
the  present  suit  was  brought. 

The  court  below,  at  the  instance  of  the  appellee,  instructed 
the  jury,  that  he  was  entitled  to  recover  in  this  suit,  the  amount 
of  said  bills,  if  the  same  were  executed  by  the  Eutaw  Company, 
and  endorsed  by  Keener  and  Gist,  by  an  agreement  with  said 
Company,  for  the  purpose  of  raising  money  thereon,  or  pur- 
chasing goods,  with  a  view  by  said  endorsement,  of  giving 
credit  to  said  Company ;  and  if  they  should  find,  that  the  de- 
fendant (in  the  court  below,)  undertook  and  agreed  with  said 
Company,  to  make  such  endorsement  in  consideration,  that 
the  said  Company  would  give  him  a  credit  for  the  amount  of 
said  responsibilities  thus  assumed,  upon  a  claim  of  said  Com- 
pany, against  said  Gist;  and  shall  further  find,  that  when  said 
single  bills  became  due,  payment  was  demanded,  and  refused 
by  said  Company,  and  that  notice  thereof  was  given  to  said 
Gist,  on  the  days  shown  by  the  protests  in  evidence,  in  this 
cause.  Of  this  instruction  the  appellants  complain. 

Upon  what  grounds  is  it  asked  of  us  to  say,  that  the  court 
below  erred  in  giving  this  instruction? 

It  was  frequently  assumed,  in  the  course  of  the  argument, 
that  sealed  instruments  are  the  causes  of  action  in  this  case, 
and  authorities  were  cited  to  prove,  that  instruments  of  that 
description,  if  left  blank,  could  not  be  filled  up  by  the  owner 
of  them.  But,  this  action  is  grounded  not  upon  the  promises 
of  the  Eutaw  Company,  which  are  to  be  found  only  in  sealed 
instruments,  but  upon  alleged  written  promises  of  the  defen- 
dant, in  the  court  below,  to  which  there  were  no  seals.  Many 
of  the  cases  therefore,  with  a  reference  to  which,  we  have  been 


OF  MARYLAND.  341 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely.— 1844. 

furnished,  afford  us  no  information,  with  regard  to  the  law  of 
this  case.  Those  alleged  promises,  although  on  the  same 
piece  of  paper,  may  be  collateral  to,  or  distinct  from,  and  no 
part  of  the  obligations  of  the  Eutaw  Company. 

Much  stress  was,  in  the  course  of  the  argument,  laid  upon 
the  circumstance,  that  the  obligations  of  the  Eutaw  Company, 
were  not  promissory  notes,  or  negotiable  paper;  and  it  seemed 
to  be  conceded,  that  if  they  had  been  instruments  of  that 
description,  the  defendant  in  error,  would  have  been  entitled 
to  recover;  the  authorities,  however,  would  not  appear  to  lead 
us  to  this  conclusion.  Chancellor  Kent  says,  (3  Com., p.  59, 
1st  edit.,}  no  other  use  can  be  made  of  a  blank  endorsement, 
on  a  note  or  bill  of  exchange,  in  filling  it  up,  than  to  point 
out  the  person  to  whom  the  bill  or  note  is  to  be  paid.  In  the 
case  of  Moies  vs.  Bird,  11  Mass.  Reports,  436,  Justice  Parker, 
pronouncing  the  opinion  of  the  court,  said  :  "Had  .the  notes 
been  made  payable  to  him,  and  negotiable  in  its  form,  the 
plaintiff  would  have  been  restricted  to  such  an  engagement, 
written  over  the  signature,  as  would  conform  to  the  nature  of 
the  instrument.  In  such  case,  the  defendant  would  have  been 
held  as  endorser,  and  in  no  other  form,  for  such  must  be  pre- 
sumed to  have  been  the  intent  of  the  parties  to  the  instrument." 
But  this  note  was  not  made  payable  to  the  defendant,  and  was 
therefore,  not  negotiable  by  his  endorsement.  What  then  was 
the  effect  of  his  signature?  It  was  to  make  him  absolutely 
liable  to  pay  the  contents  of  the  note.  He  puts  his  name  upon 
a  note,  payable  to  another,  in  consequence  of  a  purchase  made 
by  his  brother,  in  a  day  or  two  after  the  bargain  was  made, 
knowing  that  he  could  not  be  considered  in  the  light  of  a  com- 
mon endorser,  and  that  he  was  entitled  to  none  of  the  privi- 
leges of  that  character.  He  leaves  it  to  the  holder  of  the  note, 
to  write  any  thing  over  his  name,  which  might  be  considered 
not  to  be  inconsistent  with  the  nature  of  the  transaction.  In 
Seabury  vs.  Hungerford,  2nd  HilVs  JV*.  Y.  Rep.  SO,  the  court 
say,  "when  a  contract  cannot  be  enforced,  in  the  particular 
mode  contemplated  by  the  parties,  the  court,  rather  than  to 
suffer  the  agreement  to  fail  altogether,  will,  if  possible,  give 
effect  to  it  in  some  other  way." 


342  CASES  IN  THE  COUUT  OF  APPEALS 

Gist  and  Scott  adtn'rs  of  Gist,  vs.  L'rakely. — 1844. 

This  is  an  attempt  to  charge  the  defendant  with  the  amount 
due  on  two  obligations;  because  of  an  endorsement  thereon 
of  his  name  in  blank,  and  of  course,  the  obligation  is  not, 
speaking  technically,  a  negotiable  instrument.  Justice  Story, 
in  his  able  work  on  the  law  of  promissory  notes,  page  587, 
speaking  of  notes,  with  the  name  endorsed  in  blank  thereon, 
says,  "these  cases  have  been  either,  first,  where  the  note  was 
not  negotiable,  or  second,  where  it  was  negotiable,"  and  then 
adds:  "In  the  former  class  of  cases,  it  has  been  held,  that  if 
the  blank  endorsement  was  made,  at  the  same  time  as  the  note 
itself,  the  endorser  ought  to  be  held  liable,  as  an  original  pro- 
misor or  maker  of  the  note,  and  that  the  payee  is  at  liberty  to 
write  over  the  signature,  'for  value  received,  I  undertake  to 
pay  the  money  within  mentioned  to  JB, '  the  payee." 

It  is  not  the  duty  of  this  court  to  say,  upon  how  much  less 
proof,  than  was  offered  by  him,  the  plaintiff,  in  the  court  below, 
might  have  recovered  the  amount  of  his  claim.  He  might 
perhaps,  have  regarded  this  as  a  contract,  like  that  spoken  of 
by  the  Supreme  Court  of  the  United  States,  in  the  case  of  De 
Wolf  against  Rabaudand  others,  1st  Peters,  476,  "a  trilateral 
contract,  each  as  an  original  promise,  though  the  one  may 
be  deemed  subsidiary,  or  secondary  to  the  other,  a  credit  not 
given  solely  to  either,  but  to  both;  not  as  joint  contractors,  on 
the  same  contract,  but  as  separate  contractors,  upon  co-exist- 
ing contracts,  forming  parts  of  the  same  general  transaction." 
It  may  be,  that  the  plaintiff  below,  might  have  filled  up  the 
blank  somewhat  differently,  and  thereby,  have  dispensed  with 
the  necessity  of  offering  some  of  the  proof  which  he  adduced, 
but  it  is  not  perceived,  that  the  blanks  are  filled  up,  otherwise 
than  as  the  holder  of  the  notes,  was  at  liberty  to  fill  them  up, 
or  that  the  defendants  have  any  cause  to  complain  of  the  inser- 
tion of  any  word,  which,  consistently  with  the  nature  of  the 
transaction,  might  have  been  omitted. 

Indeed,  in  order  to  sustain  this  decision  of  the  court  below, 
it  is  not  necessary  to  rely  on  very  modern  decisions.  The 
principles  settled  by  the  case  of  Russell  vs.  Langstajf,  Doug. 
514,  and  the  various  cases  in  the  books,  (see  2nd  H.  Blac. 


OF  MARYLAND.  343 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely. — 1844. 

298,  note,)  brought  upon  bills,  payable  to  a  fictitious  payee,  or 
order,  would  seem  to  be  sufficient  for  our  purpose.  If  in  ca- 
ses like  those  now  spoken  of,  such  objections  to  a  recovery 
were  over-ruled,  it  is  difficult  to  come  to  a  conclusion,  that 
they  can  be  fatal  objections  to  a  recovery  in  this  suit.  In  the 
first  case,  (that  in  Douglass,)  the  defendant  endorsed  several 
notes,  all  of  them  at  the  time  blank;  that  is,  without  any  sum, 
date,  or  time  of  payment,  mentioned  in  the  notes.  The  de- 
fendant's counsel,  in  the  case,  might  well  say,  that  by  the  sig- 
nature, the  defendant  contracted  for  no  given  sum;  that  notes, 
without  sum  or  date,  were  waste  paper,  and  might  insist,  that 
the  declaration,  which  alleged  a  pre-existing  note,  made  pre- 
vious to  the  endorsement,  was  at  war  with  the  facts  of  the 
case.  Lord  Mansfield  however  held,  that  it  was  a  clear  case, 
in  favor  of  the  plaintiff. 

In  the  suits  upon  notes,  or  bills,  payable  to  a  fictitious  payee, 
or  order,  it  was  strenuously  argued,  that  the  Law  Merchant, 
forbade  notes  payable  to  order,  to  be  treated  as  notes  payable 
to  bearer.  The  court  however,  decided,  that  if  the  rules  of 
law  prevented  the  instrument  from  operating,  according  to  the 
words  used  therein,  it  may  be  stated  in  such  a  manner,  that 
the  law  will  give  effect  to  them.  The  intention  of  the  parties 
is  to  be  considered,  and  effect  is  to  be  given  to  that  intention, 
if  no  rule  of  law  is  thereby  violated.  In  this  case,  we  must 
not  doubt,  for  the  defendant  below  admitted  to  the  witness, 
and  the  jury  have,  by  their  verdict  found,  that  the  defendant 
in  the  court  below  agreed  for  a  valuable  consideration,  to  be- 
come, and  by  endorsing  them,  designed  to  become  security 
for  the  money  expressed  in  each  instrument. 

It  appears  by  the  bill  of  exceptions,  that  the  jury  were  put 
in  possession  of  acknowledgments  by  Gist,  (the  defendant  be- 
low,) that  he  and  Keener,  were  to  raise  money  for  the  Eutaw 
Company;  and  of  his  further  acknowledgments,  that  in  con- 
sideration of  his,  (Gist,)  endorsing  the  bills,  the  Company 
agreed  to  give  him  credit  upon  the  claims,  which  it  had  against 
him,  (he  being  at  the  time,  the  debtor  of  the  Company;)  that 
he  endorsed  the  bills  in  fulfilment  of  said  agreement,  and  upon 


344  CASES  IN  THE  COURT  OF  APPEALS 

Gist  and  Scott  adm'rs  of  Gist.  vs.  Drakely. — 1844. 

the  bills  so  endorsed,  money  was  raised.  By  the  terms  of  the 
contract,  then,  between  the  Company  and  Gist,  (for  which  the 
latter  received  a  valuable  and  ample  consideration,)  he  was 
bound  to  become  security  for  the  payment  of  those  bills  of  the 
Eutaw  Company,  and  this,  before  any  person  was  the  owner 
of  them;  and  moreover,  that  he  was  to  become  such  security, 
by  the  endorsement  of,  (or  writing  his  name  on)  them.  Surely 
upon  such  testimony,  (which  the  jury  were  to  believe,)  the 
appellee  was  entitled  ex  cequo  et  60730,  to  demand  of  the  defen- 
dant below,  the  amount  of  notes,  the  payment  of  which,  to 
the  holders  of  them,  was  to  be  secured  by  his  endorsement, 
and  the  amount  of  which,  was  to  remain  in  his  own  hands,  in 
order  to  save  him  from  any  possible  loss.  The  man  who  be- 
comes a  party  to  such  a  contract,  for  such  a  purpose,  and  for 
such  a  consideration,  is  forbidden,  by  every  thing  like  reason 
and  justice,  to  deny,  that  the  appellee  became  the  owner  of 
the  bills  at  his  special  instance,  and  because  of  his  undertaking 
to  pay  the  holder  of  them  their  amount,  if  default  was  made 
by  the  makers  of  them.  Surely,  of  such  a  transaction  it  may 
be  said,  as  was  said  by  Baron  Hotham,  in  1st  H.  Blac.  Reports, 
584,  "unless  some  stubborn  rule  of  law  stand  in  the  way  of 
the  present  judgment,  it  ought  to  be  supported." 

Immediately  following  the  prayer  of  the  appellee,  we  read 
in  the  bill  of  exceptions,  that  "the  defendant  offered  to  the 
court  the  following  prayers."  These  prayers,  (fourteen  in 
number,)  are  nearly  all  of  them  points,  which  might  be  legiti- 
mately insisted  upon  by  the  counsel,  whose  duty  it  was  in  the 
court  below,  or  in  this  court,  to  argue,  that  the  court  ought  not 
to  give  the  instruction,  of  which  we  have  already  spoken. 
Upon  a  few  of  them,  some  remarks  will  be  made. 

The  fifth  was  properly  rejected.  It  required  the  court  to 
assume,  that  the  parties  might  not  have  known,  that  single 
bills  were  not  such  commercial,  negotiable  instruments  as  pro- 
missory notes,  or  might  not  know,  what  was  the  liability 
which  the  defendant  below  assumed,  when  he  endorsed  them. 
The  law  requires  us  to  assume,  that  the  parties  did  understand 
the  contract  into  which  they  entered,  and  the  liability  which 


OF  MARYLAND.  345 


Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely.— 1844. 

the  defendant  below  assumed.  It  would  have  been  improper 
to  authorize  the  jury,  to  infer  from  the  evidence  the  existence 
of  such  ignorance  among  the  parties,  and  if  so,  to  instruct 
them  that  if  it  existed,  the  verdict  must  be  for  the  defendant. 

With  respect  to  the  thirteenth,  and  the  next  point,  (which 
may  be  considered  in  connection  with  it,)  they  seem  to  assume, 
that  if  theEutaw  Company  had  no  authority  (to  be  found  in  its 
charter,)  to  make  those  writings  obligatory,  then  the  defendant 
could  not  oblige  himself,  to  pay  to  the  holders  of  them,  the 
sums  of  money  expressed  in  either  of  them.  It  is  thought, 
that  it  did  not  lie  in  the  mouth  of  the  defendant  below,  to  make 
such  an  objection.  He  was  capable  of  binding  himself  to 
pay  the  debts,  if  when  they  became  due,  they  remained  unpaid. 

In  regard  to  the  supposed  speculation  in  cotton,  the  testi- 
mony (derived  from  the  defendant  below,)  was,  that  the  cot- 
ton purchased,  was  "for  packing  their  machinery."  By  this, 
it  can  only  be  understood,  that  it  was  purchased  to  pack,  in 
order  to  send  away,  the  articles  in  which  the  Company  was 
authorized  by  its  charter  to  deal.  For  such  a  purpose,  the 
Company  was  surely  authorized  to  buy  cotton  upon  credit  as 
well  as  for  cash,  and  might  give  its  bonds  as  well  as  the  ver- 
bal promise  of  any  of  its  members,  or  its  officers,  for  payment 
of  the  purchase  money. 

For  reasons,  which  have  already  been  suggested,  we  think 
there  is  no  error  in  the  refusal  by  the  court  to  give  the  other 
instructions,  which  were  not  given. 

There  is  another  exception  taken  by  the  plaintiff  in  error, 
of  which  we  will  now  dispose. 

A  rule  of  Baltimore  county  court,  then  existing,  commenced 
in  these  words.  "The  court  will  require  in  all  cases,  that  the 
whole  testimony  intended  to  be  produced  by  both  plaintiff 
and  defendant,  shall  be  offered  before  any  question  of  law  is 
raised,  except  objections  to  the  competency  of  testimony."  In 
this  case,  after  all  the  points  submitted  by  the  defendant,  as 
well  as  plaintiff,  had  been  decided  by  the  court,  the  defendant 
offered  to  introduce  other  testimony.  The  plaintiff  objected 
to  its  introduction,  "at  this  stage  of  the  cause,"  relying  on 
44  v.2 


346  CASES  IN  THE  COURT  OF  APPEALS 

Gist  and  Scott  adm'rs  of  Gist,  vs.  Drakely. — 1844. 

the  rule  of  court  above  mentioned,  and  the  court  "refused  to 
permit  the  testimony,  under  the  circumstances  stated,  to  go 
to  the  jury."  Was  there  error  in  this  refusal,  for  which  an 
appellate  court  ought  to  reverse  the  judgment  of  the  court 
below? 

This  court  has  heretofore  ( Wall  vs.  Wall,  2  H.  &  G.  82,) 
said,  "there  exists  no  discretion  in  an  inferior  court,  to  dis- 
pense, at  pleasure,  with  their  own  rules,  or  to  innovate  upon 
established  practice;  and  a  party  injured  by  such  a  course,  has 
an  undoubted  right  to  seek  redress  in  this  court.  Every  suitor 
is  interested  in  the  interpretation  of  the  rules  of  court,  appli- 
cable to  his  case;  and  an  erroneous  judgment  of  the  county 
court  in  relation  to  them,  may  in  many  cases  be  as  vitally  in- 
jurious to  him,  as  a  wrongful  judgment  upon  the  law,  which 
may  govern  his  case."  Again,  in  the  case  of  Dunbar  vs.  Con- 
way,  llth  G.  <§f  J.  97,  "this  court  has  always  regarded  a  le- 
gitimate rule  of  a  court,  as  prescribing  a  law  to  the  court. 
The  proper  office  of  such  a  rule,  is  to  establish  fixed  and 
settled  practice,  to  which  the  court  is  required  to  conform,  and 
any  error  of  opinion,  in  respect  to  its  legal  effect,  or  to  its  ap- 
plication to  a  particular  case,  will  entitle  the  party  injured  to 
redress  by  appeal."  It  is  believed,  that  the  power  of  this  court, 
in  acting  upon  appeals  of  this  description,  as  well  as  the  du- 
ties of  the  court  below,  in  regard  to  the  observance  of  its  own 
rules,  are  accurately  defined  in  the  above  extracts,  from  its 
former  decisions;  and  that  a  plaintiff  in  error,  who  brings  such 
a  complaint  as  this  before  us,  must  show  that  he  is  authorized 
by  these  former  opinions  of  the  court,  to  prefer  such  a  com- 
plaint against  the  court  below.  Rules  of  court,  adopted  for 
the  dispatch  of  business,  and  the  impartial  administration  of 
justice,  must  be  written,  so  that  all  may  understand  them,  and 
when  adopted,  must  be  a  law  to  the  court,  as  well  as  to  oth- 
ers. But  it  can  never  be  a  question  in  this  court,  whether  a 
rule  adopted  by  any  inferior  court,  is  just  such  a  rule,  as  in 
the  opinion  of  this  court,  or  a  majority  of  its  members,  ought 
to  be  adopted  in  preference  to  any  other  rule,  calculated  and 
designed  to  accomplish  the  same  object. 


OF  MARYLAND.  347 


Gist  and  Scott  adm'rs  of  Gist,  va.  Drakely. — 1844. 

It  cannot  be  alleged,  that  in  this  case,  the  court  dispensed 
with  its  rule,  or  changed  its  practice.  The  question  then  must 
be,  had  the  court  power  to  make  such  a  rule,  and  because  of 
its  existence,  deprive  the  defendant  of  an  opportunity  of  in- 
troducing testimony,  at  a  time,  when  according  to  the  rule,  it 
was  inadmissible? 

It  appears  by  the  record,  that  the  defendant  below  had  not 
previously  offered  any  testimony.  This  however,  is  unimpor- 
tant, as  it  must  be  taken  for  granted,  that  he  had  declined  to 
offer  any,  at  the  time  when  the  rule  of  court  required  or  per- 
mitted it  to  be  offered.  The  testimony  offered,  if  it  had  proved 
the  fact  for  which  it  was  offered,  might  have  rendered  wholly 
unnecessary  a  discussion  of  the  very  many  points  of  law,  up- 
on which  the  defendant  below,  seemed  to  the  court,  to  be  dis- 
posed to  rest  his  case.  Why  this  testimony  was  not  offered 
at  an  earlier  stage  of  the  trial,  is  not  shown.  We  cannot, 
therefore,  assume,  that  at  the  time  when  he  ought  to  have  sub- 
mitted it,  according  to  the  rule  of  court,  it  was  out  of  his 
reach,  or  was  afterwards  discovered. 

A  court  constituted  as  this  is,  would  necessarily  feel  reluc- 
tant to  entertain  the  question,  what  rules  would  be  the  best 
for,  and  therefore  ought  to  be  adopted  by,  the  courts  of  any 
one  of  our  judicial  districts. 

How  long  the  parties  shall  be  at  liberty  to  introduce  fresh 
testimony,  or  at  what  stage  of  the  trial  this  privilege  shall 
cease,  it  is  proper  that  a  rule  of  court  should  determine;  and 
yet,  it  is  not  to  be  believed,  that  any  rule  for  that  purpose, 
which  can  be  devised,  would  be  equally  proper  for  every  dis- 
trict. 

There  may  be  reasons,  oftentimes,  why  either  party,  and 
especially  the  defendant,  should  be  permitted  to  settle  the  law 
of  the  case,  before  he  consumes  the  time  of  the  court,  in  exa- 
mining witnesses,  whose  testimony  may  afterwards  be  found 
to  be  wholly  unnecessary.  But,  who  is  to  be  the  judge  of 
this,  in  any  particular  case?  Certainly  not  the  party  himself. 
He  may  suggest  this  course,  with  his  reasons  for  preferring  it, 
and  if  the  court  and  his  adversary  approve  of  it,  none  would 


348  CASES  IN  THE  COURT  OF  APPEALS 

Bennington  vs.  Dinsmore. — 1844. 

say,  that  the  observance  of  the  rule  might  not  be  dispensed 
with.  But  ought  such  a  course  to  be  pursued,  if  the  court, 
when  the  reasons  for  preferring  it  are  made  known,  thinks, 
that  the  rule  ought  to  be  adhered  to? 

It  is  very  much  in  favor  of  the  rule  under  consideration, 
that  it  was  adopted  as  a  rule  for  city  business,  at  least  fifteen 
years  ago,  and  yet,  that  it  is  now  for  the  first  time,  it  is  be- 
lieved, a  subject  of  complaint  in  this  court. 

JUDGMENT  AFFIRMED. 


JEREMIAH  BENNINGTON,  vs.  SAMUEL  DINSMORE,  ADMINIS- 
TRATOR OF  SAMUEL  DINSMORE. — December,  1844. 

Upon  the  single  bill  of  B.,  dated  20th  July  1827,  promising  to  pay  the  "heirs, 
administrators  or  assigns,  of  the  estate  of  D.,  deceased,"  an  action  was 
commenced  by  the  administrators  of  D.,  on  the  8th  February  1839.  The 
writ  was  regularly  renewed  from  term  to  term,  until  November  term,  1839, 
when  it  was  suggested,  that  the  said  letters  of  administration  had  been 
revoked  and  granted  anew  to  S.,  who  sued  out  another  writ,  in  his  own 
name,  to  the  next  succeeding  term ;  which  being  returned  non  est,  and 
regularly  renewed  for  several  terms,  he  then  procured  an  attachment. 
This  was  levied  and  returned.  The  defendant,  now,  gave  special  bail  and 
appeared,  and  the  last  administrator  declared  against  him  on  the  single  bill, 
specially  stating  the  revocation  of  the  first  letters.  HELD  :  That  it  was 
uncertain,  upon  the  face  of  these  instruments,  to  whom  they  were  to  be 
delivered,  or  in  whose  name  a  suit  must  be  brought ;  that  no  action  could 
be  brought  on  them  ;  and,  that  limitations  were  a  bar  to  the  action. 

Whore  there  are  more  writs  than  one,  it  must  appear,  that  they  are  regu- 
lar continuances  of  each  other,  to  except  the  case  from  the  act  of 
limitations. 

Writs  issued  in  the  name  of  S.,  administrator  of  D.,  cannot  be  regular  con. 
tinuances  of  writs  issued  by  G.,  administrator  of  D. ;  though  the  autho- 
rity of  the  latter  had  been  revoked. 

APPEAL  from  Harford  County  Court. 

This  was  an  action  of  debt,  brought  on  the  8th  February 
1839,  by  Jane  Dinsmore  and  Thomas  H.  Gillispie,  administra- 
tors of  Samuel  Dinsmore,  late  of  Harford  county,  deceased, 
against  Jeremiah  Bennington,  in  a  plea  that  he  render  unto 


OF  MARYLAND.  349 


Bennington  vs.  Dinsmore. — 1844. 


them  the  sum  of  $66.42,  which  he  unjustly  detains  from 
them,  &c. 

Another  writ,  like  the  first,  was  sued  out  same  term,  and  both 
were  returnable  to  the  3d  Monday  of  May  1839.  These  writs 
were  returned  "won  est"  and  were  then  ordered  to  be  consoli- 
dated, and  another  writ  for  both  the  debts  mentioned  in  the 
first  writs,  was  sued  out  on  the  17th  June  1839,  returnable  the 
3d  Monday  of  November  of  that  year.  This  was  also  re- 
turned "now  est." 

The  record  then  recited  that,  whereas,  since  the  issuing  of 
the  writ  aforesaid,  the  letters  of  administration  of  the  said  Jane 
Dinsmore  and  Thomas  H.  Gillispie  have,  by  the  Orphans  court 
of  Harford  county,  been  revoked,  and  letters  of  administration 
of  all  and  singular,  the  goods  and  chattels,  rights  and  credits 
which  were  of  the  said  Samuel  Dinsmore,  late  of  Harford 
county,  deceased,  by  the  said  Orphans  court,  were  granted  and 
committed  to  Samuel  Dinsmore,  as  by  the  suggestion  of  the 
said  Samuel  Dinsmore  has  been  stated.  Therefore,  you  are 
hereby  commanded  to  take  the  said  Jeremiah  Bennington,  late 
of  Harford  county,  yeoman,  if,  &c.,  and  him,  &c.,  so  that  you 
have  his  body  before,  &c.,  on  the  3d  Monday  of  May  next,  to 
answer  unto  Samuel  Dinsmore,  administrator  of,  &c.,  of  Samuel 
Dinsmore,  late  of  Harford  county,  deceased,  in  a  plea  that  he 
render  unto  him  the  sum  of,  &c.  Issued  the  16th  Janua- 
ry 1840. 

This  writ  was  renewed  on  the  28th  May  1840,  again  on  the 
2nd  December  1840;  again,  on  the  18th  October  1841;  and 
again,  on  the  14th  May  1842,  and  all  returned  non  est. 

At  May  term  1842,  the  plaintiff  filed  a  short  note,  showing 
his  cause  of  action,  a  copy  of  which  was  made  out  and  de- 
livered to  the  sheriff  of  Harford  county,  aforesaid,  thereon  en- 
dorsed, to  wit,  "to  be  left  at  the  house  where  the  said  Jeremiah 
did  last  reside."  The  sheriff  to  whom  the  said  short  note  was, 
in  form  aforesaid  delivered,  returned  the  same:  "The  short 
note,  of  which  this  is  a  true  copy,  was  left  at  the  residence  of 
Jeremiah  Bennington  on  the  27th  day  of  September  1842." 


350  CASES  IN  THE  COURT  OF  APPEALS 

Bennington  vs.  Dinsmore. — 1844. 

And  thereupon  the  said  plaintiff,  to  make  proof  of  his  ac- 
tion aforesaid,  files  in  court  here  the  copies  of  the  writings 
obligatory,  with  an  affidavit  thereunto  annexed,  and  which  are 
as  follows,  to  wit: 

Harford  county,  Md.  We,  or  either  of  us,  do  promise  to 
pay  to  the  heirs,  administrators  or  assigns,  of  the  estate  of 
Samuel  Dins-more,  deceased,  the  just  and  full  sum  of  $66.42, 
lawful  money,  for  value  received.  Witness  our  hands  and 
seals,  this  twentieth  day  of  July  1827. 

$66.44.  JEREMIAH  BENNINGTON,  (Sea!.) 

MARY  BENNINGTON,          (Seal.) 

Test, — William  C.  Kirkwood,  John  JJ.  Kirkwood. 

Ture  copy — test,  HENRY  DORSEY,  CPk. 

Harford  county,  Md.  We,  or  either  of  us,  do  promise  to 
pay  to  the  heirs,  administrators,  or  assigns  of  the  estate  of 
Samuel  Dinsmore,  deceased,  the  just  and  full  sum  of  $66.42, 
lawful  money,  for  value  received.  Witness  our  hands  and 
seals,  this  twentieth  day  of  July  1827. 

$66.42.  JEREMIAH  BENNINGTON,  (Seal.) 

MABY  BENNINGTON,          (Seal.) 

Test, — William  C.  Kirkwood,  John  Ji.  Kirkwood. 

True  copy — test,  HENRY  DORSEY,  Cl'k. 

Samuel  Dinsmore,  adm'r  of  Samuel  Dinsmore,  deceased,  vs. 
Jeremiah  Bennington.  In  Harford  county  court,  May  term, 
1842.  8th  non.  est. 

City  of  Baltimore,  to  wit :  Be  it  remembered,  that  on  this 
5th  day  of  October,  in  the  year  1842,  before  me,  the  subscri- 
ber, a  justice  of  the  peace  of  the  State  of  Maryland,  in  and 
for  the  city  aforesaid,  personally  appeared  Samuel  Dinsmore, 
administrator  of  Samuel  Dinsmore,  deceased,  and  plaintiff  in 
the  above  action,  and  made  oath  on  the  Holy  Evangely  of 
Almighty  God,  that  Jeremiah  Bennington,  the  above  named 
defendant,  is  justly  and  bona  fide  indebted  to  him,  the  said 
Samuel,  as  administrator  of  said  Samuel  Dinsmore,  deceased, 
in  the  sum  of  $132.84,  with  legal  interest  thereon  from  the 
20th  day  of  July  1827,  over  and  above  all  discounts.  And 
the  said  Samuel,  administrator  as  aforesaid,  at  the  same  time 


OF  MARYLAND.  351 


Bennington  vs.  Dinsmore. — 1844. 


produced  the  office  copies  of  the  two  bills  obligatory,  (the 
originals  whereof,  are  filed  in  the  said  county  court,  in  the  case 
of  the  judgments  heretofore  rendered  in  said  court,  in  favor  of 
the  administrators  of  said  Dinsmore,  deceased,  against  Mary 
Bennington,  the  co-obligor  in  said  bills  obligatory,)  on  and  by 
which  the  said  Jeremiah  is  so  indebted,  which  said  copies  of 
the  bills  obligatory,  are  hereto  annexed.  In  testimony  where- 
of, I  do  hereto  subscribe  my  name  the  day  and  year  first  above 
written.  JOHN  W.  PEALE. 

On  this  proof,  the  county  court,  on  the  8th  October  1842, 
awarded  an  attachment  against  the  said  Jeremiah  Bennington, 
which,  at  November  term  1842,  was  returned:  "laid  as  per 
schedule  in  defendant's  possession,  and  defendant  summoned ;" 
which  schedule,  mentioned  in  said  return  of  said  sheriff,  is  as 
follows,  to  wit,  &c. 

The  defendant  then  appeared,  gave  special  bail,  and  the 
court  dissolved  the  attachment,  and  the  plaintiff  filed  his  de- 
claration, setting  forth  the  said  single  bills,  according  to  their 
tenor,  and  then  alleged,  that  the  said  defendant  then  and  there 
delivered  the  said  two  writings  obligatory  to  a  certain  Jane 
Dinsmore  and  Thomas  H.  Gillispie,  they  then  and  there  being 
the  administrators  of  the  said  Samuel  Dinsmore,  deceased,  by 
the  Orphans  court  of  Harford  county,  before  that  time  duly 
constituted  and  appointed.  The  said  plaintiff  further  avers, 
that  after  the  making  of  the  said  two  writings  obligatory, 
to  wit,  on  the  day  of  in  the  year  eighteen  hun- 

dred and  the   Orphans   court   aforesaid,    did  revoke 

the  letters  of  administration,  so  previously  granted  to  the 
said  Jane  Dinsmore  and  Thomas  H.  Gillispie,  on  the  estate 
of  the  said  Samuel,  deceased.  And  thereupon,  letters  of 
administration  upon  the  estate  of  the  said  Samuel,  deceased, 
were,  by  the  Orphans  court  aforesaid,  in  due  form  of  law 
committed  to  the  said  plaintiff,  who  thereupon  became  enti- 
tled to  demand  and  receive  from  the  said  defendant  the 
said  several  sums  of  money  mentioned  in  the  said  two 
writings  obligatory.  Nevertheless,  the  said  defendant,  al- 
though often  requested,  hath  not  yet  paid  the  said  two  sums 


352  CASES  IN  THE  COURT  OF  APPEALS 

Bennington  vs.  Dinsmore. — 1844. 

of  money,  or  either  of  them,  or  any  part  of  either  of  them, 
either  to  the  said  former  administrators  of  the  said  Samuel, 
deeased,  or  to  the  said  plaintiff,  administrator  as  aforesaid,  nor 
has  he  paid  the  same  or  any  part  thereof,  to  any  or  either  of 
the  heirs  or  assigns  of  the  said  Samuel,  deceased,  but  to  pay 
the  same  or  any  part  thereof,  to  either  of  the  said  parties  above 
mentioned,  the  said  defendant  has  hitherto  wholly  refused  and 
still  refuses,  to  pay  the  same  to  the  said  plaintiff,  as  adminis- 
trator as  aforesaid.  Whereupon,  &c. 

The  parties  then  agreed  to  submit  the  cause  aforesaid  to  the 
court  here,  upon  the  following  statement  of  facts,  to  wit: 

Stated  case.  It  is  admitted,  that  in  the  year  1826,  Samuel 
Dinsmore,  the  elder,  died,  and  that  Jane  Dinsmore  and  Thomas 
H.  Giltispie  were  appointed  his  administrators.  That  while 
they  were  administrators,  the  defendant,  on  the  20th  day  of 
July,  1827,  executed  and  delivered  to  the  said  Jane  and  Tho- 
mas the  two  bills  obligatory,  mentioned  in  the  declaration. 
That  on  the  8th  day  of  February  1839,  the  said  Jane  and 
Thomas,  as  administrators  of  said  Dinsmore,  sued  out  a  writ 
against  said  defendant  on  said  bills  obligatory,  which  was  not 
served,  but  returned  ilnon  est,"  and  was  renewed  to  the  suc- 
ceeding term,  and  again  returned  non  est.  That  after  the  issu- 
ing of  said  writ,  to  wit,  on  the  day  of  the  letters  of 
administration  of  the  said  Jane  and  Thomas  H.  were  revoked, 
and  administration  of  the  estate  of  the  said  Samuel,  deceased, 
granted  to  the  plaintiff,  who  sued  out  a  writ  against  defendant 
on  the  16th  of  January,  1840,  to  the  term  immediately  suc- 
ceeding that  to  which  the  last  mentioned  writ  had  been  so 
returned,  which  writ  was  regularly  renewed.  That  the  writs 
referred  to  are  in  the  case,  and  make  part  of  this  statement. 
That  the  said  Samuel,  deceased,  had  no  children,  and  was 
born  an  alien.  That  said  plaintiff  is  a  naturalized  alien. 

It  is  agreed  that  limitations  are  considered  as  if  pleaded. 
And  if,  upon  the  aforegoing  statement,  the  court  shall  be  of 
opinion  that  the  plaintiff  is  entitled  to  recover,  then  judgment 
to  be  entered  for  the  plaintiff;  but,  if  the  court  should  be  of 
opinion  that  plaintiff  is  not  entitled  to  recover,  then  judgment 


OF   MARYLAND.  353 


Bennington  vs.  Dinsmore. — 1844. 


to  be  entered  for  defendant.     Either  party  to  have  the  right  of 
appeal,  and  all  errors  in  the  pleadings  waived. 

The  county  court  rendered  judgment  for  the  plaintiff,  for  his 
debts  &c.,  and  the  defendant  prosecuted  this  appeal. 

The  cause  was  argued  before  DORSEY,  CHAMBERS  and 
MAGRUDER,  J. 

By  REVERDY  JOHNSON  for  the  appellant,  and 
By  OTHO  SCOTT  for  the  appellee. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

This  cause  was  submitted  to  Harford  county  court,  upon  a 
case  stated.  By  this  it  appears,  that  Samuel  Dinsmore,  the 
intestate,  died  in  1826,  and  that  the  plaintiff  in  error,  with 
another,  on  the  29th  July  1827,  executed  two  several  instru- 
ments of  writing,  and  thereby  promised  to  pay  "to  the  heirs, 
administrators  or  assigns,"  of  the  estate  of  Samuel  Dinsmore, 
deceased,  the  sums  of  money  expressed  in  them.  Upon  those 
instruments,  suits  were  brought,  first,  in  the  name  of  Jane 
Dinsmore  and  Thomas  H,  Gillispie,  administrators  of  Samuel 
Dinsmore,  and  upon  a  revocation  of  their  letters,  and  the  grant 
of  others  to  the  present  appellee,  before  the  arrest  of  the  ap- 
pellant, the  last  administrator  issued  a  writ  in  his  name,  as 
administrator. 

It  is  contended,  that  no  judgment  could  have  been  rendered 
in  favor  of  the  plaintiff  below,  although  the  suits  had  been 
continued,  as  well  as  brought  in  the  names  of  the  first,  who 
administered  upon  the  estate,  because  of  the  uncertainty  by 
whom  the  money  may  be  demanded.  And  indeed,  it  is  diffi- 
cult to  determine,  who  can  be  said  to  be  the  obligee  ?  One 
would  suppose  not  the  administrators,  to  the  exclusion  of  the 
heirs,  nor  the  latter,  rather  than  the  former. 

We  are  told,  in  Bacon's  Abridgment,  ( Title,  "Obligations,") 
that  an  obligation  of  =£200,  to  two,  solvendum,  the  ,£100  to  the 
one,  and  the  other,  to  the  other,  is  a  void  solvendum,  and  this 
because,  although  there  may  be  several  obligees,  yet  a  person 
cannot  be  bound  to  several  persons,  severally.  But  in  this  case, 
45  v.2 


354  CASES  IN  THE  COURT  OF  APPEALS 

Bennington  vs.  Dinsmore. — 1844. 

it  appears  that  the  obligor  is  not  to  be  bound  to  both,  but  to 
one  or  to  the  other,  and  to  which  more  than  to  the  other,  the 
instruments  themselves,  do  not  instruct  us.  How  is  it  to  be 
ascertained,  to  which  of  them  the  obligations  are  to  be  de- 
livered? or  is  a  delivery  to  each  necessary,  in  order  to  the 
validity  of  the  instruments? 

It  may  be,  as  was  suggested  in  the  argument,  that  those  in- 
struments furnish  evidence  of  an  indebtedness  either  in  the 
life  time  of  the  intestate,  or  for  property,  a  part  of  his  estate 
sold  since  his  death.  If  so,  the  administrators  have  still  their 
right  of  action,  but  that  right  of  action  must  not  be  an  instru- 
ment of  writing,  which  the  debtor  is  at  liberty  to  discharge  by 
paying  the  money  to  the  heirs,  persons  who  have  no  right  to 
receive  or  to  release  debts  due  to  the  estate. 

It  must  be  admitted,  that  separate  suits  cannot  be  brought 
upon  each  of  these  instruments  of  writing ;  the  one  in  the 
name  of  the  heirs,  and  the  other  in  the  name  of  the  adminis- 
trators, and  a  judgment  be  obtained  by  each,  for  the  same 
money.  Yet,  if  one  be  authorized  to  bring  suit,  surely  an  ac- 
tion of  debt  may  be  brought  by  the  other,  and  the  pendency 
of  the  action  by  one,  could  not  be  pleaded  in  bar,  to  the  action 
by  the  other.  There  is  no  "certainty  to  a  certain  intent  in 
general,"  in  this  case,  and  if  "the  creditors  of  Henry  M.  Chew" 
could  not  maintain  an  action  upon  the  order  of  the  court,  set 
forth  in  the  case  of  Boteler  fy  Belt  vs.  State,  use  of  Chew,  #c., 
in  8  Gill  fy  Johnson  360,  it  would  seem  to  follow,  that  the 
objection  arising  from  the  uncertainty  in  this  case,  to  whom 
the  instruments  of  writing  are  to  be  delivered,  and  in  whose 
name  a  suit  must  be  brought,  must  prove  equally  fatal  in  this 
case. 

But  if  a  suit  could  be  instituted  in  the  name  of  the  admin- 
istrators of  the  intestate,  still  the  plea  of  now  accrevit  infra  #c., 
of  which  it  is  agreed,  that  the  defendant  shall  have  the  bene- 
fit, would  defeat  the  action.  "Where  there  are  more  writs 
than  one,  it  must  appear  that  they  are  regular  continuances  of 
each  other,  JVbrm'  Peake,  425,  and  the  writs  issued  in  the 
name  of  Samuel  Dinsmore,  administrator  of  Samuel  Dinsmore, 


OF  MARYLAND.  355 


The  P.,  W.  &  B  Rail  Road  Co.  vs.  Bayless.— 1844. 

are  not  regular  continuances  of  those  sued  out  in  the  name 
of  the  original  administrators. 

JUDGMENT  REVERSED,  WITH  COSTS. 


THE  PHILADELPHIA,  WILMINGTON,  AND  BALTIMORE  RAIL 
ROAD  COMPANY,  vs.  ZEPHENIAH  BAYLESS. — Dec.  1844. 

By  the  act  of!831,  ch.  288,  the  Baltimore  and  Port  Deposite  R.  R.  Co.  was 
chartered,  to  construct  a  rail  road  from  B.  to  P.  D.  By  the  act  of  same 
year,  ch.  296,  the  Delaware  and  Maryland  R.  R.  Co.  was  also  chartered, 
to  construct  a  road  from  some  point  at  the  Delaware  and  Maryland  line 
to  P.  D.  By  the  act  of  1835,  ch.  293,  the  D.  and  M.  Co,  was  united  to  the 
Wilmington  and  Susquehanna  R.  R.  Co.,  a  company  chartered  by  Dela- 
ware under  that  name.  By  the  act  of  1837,  ch.  30,  the  first  named  com- 
pany was  united  with  the  W.  <£  S.  R.  R.  Co.,  under  the  name  of  the 
Philadelphia,  Wilmington  and  Baltimore  R.  R.  Co.  The  first  named  com- 
pany was  located  in  Baltimore  and  Harford  counties ;  and  as  to  the  second, 
which  lies  in  Cecil  county,  Maryland,  "  the  shares  of  the  capital  stock  of 
the  said  company  shall  be  deemed  and  considered  personal  estate,  and  shall 
be  exempt  from  the  imposition  of  any  tax  or  burthen  by  the  State,  except 
that  portion  of  the  permanent  and  fixed  works  of  the  company,  within  the 
State  of  Maryland,  and  that  any  tax  which  shall  hereafter  be  levied  upon 
said  section,  shall  not  exceed  the  rate  of  any  general  tax,  which  may,  at 
the  same  time,  be  imposed  upon  similar  real  and  personal  estate,  within 
this  State,  for  State  purposes."  HELD  : 

1st.  That  the  shares  and  stock  of  the  D.  $•  M.  R.  R.  Co.,  its  works,  im- 
provements,  profits,  and  machinery  of  transportation,  except,  &c.,  were 
exempted  from  all  taxation  or  levies,  whether  for  county  or  State  purposes. 
2nd.  The  permanent  and  fixed  works  of  the  Company  remained  subjects  of 
taxation  or  assessment,  either  for  county  or  State  purposes,  or  for  both  by 
virtue  of  the  said  exception. 

3rd.  The  terms,  "  that  any  tax,  which  shall  hereafter  be  levied,  shall  not 
exceed,"  &c.,  have  no  reference  to  taxes  or  assessments  on  levies  for  coun- 
ty purposes  ;  it  relates,  exclusively,  to  taxes  laid  for  State  purposes. 
4th.  The  powers,  &c.,  exemptions  conferred  by  the  act  of  1835,  ch.  293,  as 

to  county  taxes,  relate  to  Cecil  county, 

5th.  A  tax  laid  by  the  commissioners  of  Harford  county,  for  county  pur- 
poses,  on  the  rails,  bed  of  the  rail  road,  and  other  property  of  the  company, 
connected  with  its  road  in  Harford  county,  and  not  upon  the  cars  of  said 
Company,  was  not  forbidden  by  the  charters  referred  to,  and  is  within  the 
general  law  relating  to  taxes. 


356  CASES  IN  THE  COURT  OF  APPEALS 

The  P.,  W.  &  B.  Rail  Road  Co.  vs.  Bayless.— 1844. 

APPEAL  from  Harford  County  Court. 

This  was  an  action  of  trespass  upon  the  case,  brought  on 
the  25th  November  1842,  by  the  appellee  against  the  appel- 
lant, who  declared,  that  whereas  the  defendants,  on  the  1st 
January  1842,  to  wit,  at,  &c.,  were  indebted  to  the  said  plain- 
tiff, as  one  of  the  collectors  of  taxes  for  Harford  county,  duly 
appointed  by  the  board  of  commissioners  of  said  county,  in 
the  sum  of  $125,  for  taxes  due  the  plaintiff,  as  collector  as 
aforesaid,  and  being  so  indebted,  they,  the  said,  &c. 

The  parties  agreed,  that  their  case  be  docketted  by  consent, 
and  submitted  on  a  statement  of  facts,  which  admitted,  that 
the  claim  in  this  case  is  for  taxes  levied  and  assessed  by  the 
commissioners  of  Harford  county,  for  the  year  1841,  for  the 
common  and  ordinary  county  charges,  and  not  for  State  pur- 
poses. That  the  same  was  levied  and  assessed  on  the  rails, 
bed  of  the  rail  road,  and  other  property  of  said  defendants, 
connected  with  its  rail  road,  and  absolutely  necessary  for  the 
use  and  enjoyment  of  its  rail  road.  That  the  plaintiff  was 
regularly  authorised,  to  collect  all  taxes,  legally  assessable,  on 
the  property  of  defendant. 

That  the  several  acts  of  Assembly,  which  relate  to  the  in- 
corporation and  charter,  are  to  be  regarded  as  part  of  this 
statement,  and  to  save  the  trouble  of  transcribing  them,  either 
party  may  read  them  from  the  printed  statutes,  to  have  the 
same  effect  as  if  they  were  transcribed  into  this  statement. 

It  is  further  agreed,  that  if  the  court  shall  be  of  opinion  on 
the  aforegoing  statement,  that  the  said  property  of  the  said 
defendant,  is  liable  to  be  assessed  for  ordinary  county  charges, 
then  judgment  to  be  rendered  for  plaintiff,  for  $118  and  costs. 
But  if  the  court  shall  be  of  opinion,  that  the  said  property  of 
said  defendant,  is  not  liable  to  assessment  and  taxation  for 
ordinary  county  charges,  but  the  same  is  exempted  from  such 
assessment  and  taxation  under  its  charter,  then  judgment  to 
be  for  defendant ;  either  party  to  have  the  right  to  appeal. 

The  county  court  rendered  judgment  for  the  plaintiff  below, 
and  the  defendant  prosecuted  this  appeal. 


OF  MARYLAND.  357 


The  P.,  W.  &  B.  Rail  Roid  Co.  vs.  Bayless.— 1844. 


In  the  Court  of  Appeals,  the  parties  further  admitted,  that 
the  property  assessed  tn  this  case,  lies  in  Harford  county,  and 
does  not  include  the  cars  of  the  defendants;  that  the  princi- 
ple of  valuation,  adopted  in  making  the  assessment  in  this 
case,  was  to  assess  the  buildings  and  the  rails,  as  of  the  value 
they  bore,  irrespective  of  their  being  portions  of  the  rail  road, 
and  the  land  as  land,  and  not  as  of  increased  value,  by  reason 
of  being  used  as  a  rail  road;  that  the  rate  of  county  taxation, 
imposed  by  the  commissioners  of  Harford  county,  in  the  pro- 
perty of  said  Company,  varies  from  the  rate  of  county  taxa- 
tion, imposed  by  the  commissioners  of  Baltimore  and  Cecil 
counties. 

The  cause  was  argued  before  DORSET,  CHAMBERS  and  MA- 
GRUDER,  J. 

By  0.  SCOTT,  for  the  appellant,  and 
By  YELLOTT,  for  the  appellee. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

The  only  question  designed  to  be  raised  in  the  case  before 
us,  is,  whether  that  portion  of  the  permanent  and  fixed  works 
of  the  Philadelphia,  Wilmington,  and  Baltimore  Rail  Road 
Company,  lying  within  the  limits  of  Harford  county,  is  subject 
to  the  payment  of  county  levies  or  taxes,  as  they  are  sometimes 
called.  That  they  are  so,  in  common  with  all  other  property 
in  the  county,  is  conceded,  unless  exempted  therefrom,  by 
some  legislative  enactment  upon  the  subject ;  and  such  enact- 
ment it  is  insisted,  is  to  be  found  in  the  latter  part  of  the  19th 
section  of  the  act  of  the  General  Assembly  of  Maryland, 
passed  at  December  session  1831,  chap,  296,  entitled,  "an 
act  to  incorporate  the  Delaware  and  Maryland  Rail  Road  Com- 
pany," which  declares,  "that  the  said  road  or  roads,  with  all 
their  works,  improvements  and  profits,  and  all  the  machinery 
of  transportation  used  on  said  road,  are  hereby  vested  in  said 
Company,  incorporated  by  this  act,  and  their  successors  forever; 
and  the  shares  of  the  capital  stock  of  said  Company,  shall  be 
deemed  and  considered  personal  estate,  and  shall  be  exempt 


358  CASES  IN  THE  COURT  OF  APPEALS 

The  P.,   W.  &'  B.   Rail  Road  Co.  vs.  Bayless — 1844. 

from  the  imposition  of  any  tax  or  burthen,  by  the  States  assent- 
ing to  this  law,  except  upon  that  portion  of  the  permanent  and 
fixed  works  of  said  Company,  uhich  may  be  within  the  State 
of  Maryland;  and  that  any  tax,  which  shall  hereafter  be  levied 
upon  said  section,  shall  not  exceed  the  rate  of  any  general  tax, 
which  may,  at  the  same  time,  be  imposed  upon  similar,  real  or 
personal  property  of  this  State,  for  State  purposes."  Accord- 
ing to  the  true  construction  of  this  provision  of  the  act  of 
Assembly,  we  think,  that  by  the  first  part  of  it,  the  shares  of 
the  capital  stock  of  the  Company,  thereby  created,  its  works, 
improvements,  profits,  and  machinery  of  transportation,  except 
its  permanent  and  fixed  works,  which  lay  within  the  State  of 
Maryland,  were  exempted  from  all  taxation  or  levies,  whether 
for  county  or  State  purposes.  And  that,  as  far  as  regards  the 
said  first  part  of  said  recited  provision,  such  permanent  and 
fixed  works  which  lay  within  the  State  of  Maryland,  remain- 
ed subjects  of  taxation  or  assessment,  either  for  county  or 
State  purposes,  or  for  both,  in  the  same  manner  as  if  no  such 
exemption  had  been  inserted  in  the  act  of  Assembly.  That 
as  to  the  succeeding  part  of  the  said  provision,  it  has  no  refer- 
ence to  taxes  or  assessments  on  levies,  for  county  purposes; 
and,  therefore,  in  no  wise,  impairs  the  rights  asserted  by  the 
appellee  in  the  present  action.  That  it  relates  exclusively  to 
taxes  laid  for  State  purposes;  and  is  to  be  construed  in  the 
same  manner,  as  if  the  words  "for  State  purposes,"  which 
now  stand  at  the  end  of  the  section,  had  been  inserted  after 
the  words  "any  tax,"  when  it  would  read,  and  that  any  tax, 
for  State  purposes,  which  shall  hereafter  be  levied  upon  said 
section,  shall  not  exceed  the  rate  of  any  general  tax,  which 
may,  at  the  same  time,  be  imposed  upon  similar,  real  or  per- 
sonal property  of  this  State. 

But,  suppose  we  are  wrong  in  the  construction  we  have 
given  to  the  portion  of  the  act  of  Assembly  referred  to,  what 
has  that  to  do  with  the  question  now  before  us.  That  act  of 
Assembly,  related  to  the  Delaware  and  Maryland  Rail  Road 
Company;  the  southern  terminus  of  which  road,  was  at 
the  river  Susquehanna.  The  powers  and  exemptions  given 


OF  MARYLAND.  359 


Hopkins  et  al,  vs.  Frey. — 1844. 


by  its  charter  to  that  Company,  as  regards  matters  of  the 
character  of  those  now  in  controversy,  apply  to  Cecil,  not 
Harford  county.  To  determine  the  question  now  before  us, 
we  must  look  to  the  act  of  1831,  ch.  288,  entitled,  "an  act  to 
incorporate  the  Baltimore  and  Port  Deposite  Rail  Road  Com- 
pany ;"  not  to  the  act  of  Assembly,  for  the  incorporation  of 
the  Delaware  and  Maryland  Rail  Road  Company.  Under  the 
first  of  these  laws,  you  will  look  in  vain  for  any  such  exemp- 
tion, as  that  now  claimed  by  the  Philadelphia,  Wilmington, 
and  Baltimore  Rail  Road  Company, 

The  acts  of  Assembly  of  1835,  ch.  93,  and  1837,  ch.  30,  by 
which  the  Wilmington  and  Susquehanna  Rail  Road  Company, 
and  the  Delaware  and  Maryland  Rail  Road  Company,  and  the 
Baltimore  and  Port  Deposite  Rail  Road  Company,  were  united 
into  one  Company,  by  the  name  of  the  Philadelphia,  Wilming- 
ton, and  Baltimore  Rail  Road  Company,  confer  no  such  exemp- 
tion. 

JUDGMENT  AFFIRMED. 


JAMES  M.  HOPKINS  AND  OTHERS,  vs.  ELIZABETH  FREY. — 
December  1844. 

By  the  act  of  1818,  ch.  193,  sec.  10,  it  is  enacted :  "  that  widows  shall  be  en- 
titled to  dower  in  lands  held  by  equitable  title  in  the  husband,  unless  the 
same  bo  devised  by  a  will,  made  before  the  passage  of  this  act:  but  such 
right  of  dower  shall  not  operate  to  the  prejudice  of  any  claim  for  the  pur- 
chase money  of  such  lands,  or  other  lien  on  the  same  ;  and  tenants  by  the 
courtesy,  shall  be  entitled  for  life  to  lands  held  by  equitable  title,  but  not  to 
the  prejudice  of  any  claim  for  the  purchase  money  of  such  lands,  or  other 
lien  on  the  same." — HELD  : 

That  the  owner  of  the  equity  of  redemption  in  fee,  having  mortgaged  the 
same,  prior  to  the  passage  of  this  act,  and  the  same  having  been  sold 
under  a  decree  obtained  upon  such  mortgage,  his  widow  was  not  entitled  to 
dower,  as  against  the  purchaser  at  such  sale. 

If  the  equity  of  redemption  had  not  been  mortgaged  prior  to  the  act  of  1818, 
her  right  to  dower  thereout,  could  not  be  questioned. 

There  is  nothing  in  the  act  of  1818  which  authorises  the  opinion,  that  an 
equitable  estate  which  had  belonged  to  the  husband,  but  had  been  mort- 
gaged before  the  passage  of  that  law,  and  sold  in  his  life  time,  is  an  estate 
of  which  his  widow  could  be  endowed. 


360  CASES  IN  THE  COURT  OF  APPEALS 

Hopkins  et  al.,  vs.  Frey. — 1844. 

The  act  refuses  dower  in  an  equitable  interest  in  lands,  if  the  same  be  devised 
by  a  will  made  before  its  passage,  and  cannot  operate  to  the  prejudice  but  of 
those  creditors  and  heirs,  who  became  such  after  its  enactment. 

APPEAL  from  the  Court  of  Chancery. 

On  the  29th  February  1840,  the  appellee  filed  her  bill,  al- 
leging that  she  was  the  widow  of  John  Frey,  deceased.  That 
the  said  John  Frey  was,  during  his  life  time,  and  during  his 
marriage  with  the  said  E.  F.,  seized,  in  fee  simple,  of  divers 
messuages,  land  and  tenements,  lying  in  Cecil  county  afore- 
said, viz,  a  tract  or  parcel  of  land  called  "Dixons  Exchange," 
one  other  tract  called  "Hillis  Delight,"  and  one  other  tract 
called  "Hillis  Addition,"  which  several  tracts  or  parcels  of 
land,  were  conveyed  to  the  said  John  Frey  and  a  certain  Matthew 
Irvin,  by  a  certain  Jeremiah  Brown,  by  deed  dated  on  or  about 
the  8th  July  1801.  That  the  said  Matthew  Irvin,  afterwards, 
to  wit,  on  the  3rd  November  1803,  conveyed  all  his  undivided 
moiety,  estate,  and  interest,  in  and  to  the  said  several  tracts 
of  land  to  the  said  John  Frey  ;  that  all  said  several  tracts  of 
land  were  sold  during  the  life  time  of  the  said  John  Frey,  and 
during  their  marriage,  to  a  certain  James  Hopkins,  of  the  State 
of  Pennsylvania ;  that  the  said  James  Hopkins  departed  this 
life  in  the  State  of  Pennsylvania,  intestate,  leaving  the  follow- 
ing children  and  heirs  at  law, namely,  &c.  That  the  said  several 
tracts  of  land  are  now  rented  to  and  in  the  possession  of  a  cer- 
tain Thos.  H.  Perdue  Sf  Co.,  of  the  number,  names  or  residence 
of  the  persons  composing  said  company,  she  is  ignorant,  and 
that  said  Thomas  H.  Perdue  resides  upon  the  premises,  in 
Cecil  county,  Maryland.  That  the  said  /.  F.  was,  in  his  life 
time,  and  during  his  marriage  with  her,  seized,  in  fee  simple, 
of  another  tract  of  land  called  "Browns  Inheritance" 

The  bill  then  proceeded  to  set  out  the  title  to  this  tract,  and 
other  tracts,  in  relation  to  which  no  appeal  was  taken.  And 
then  stated,  that  her  husband,  the  said  John  Frey,  departed 
this  life  on  the  26th  December  1832,  by  reason  whereof, 
she  became  entitled  to  her  dower  in  the  land  and  property 
aforesaid ;  that  she  never  hath  made  any  conveyance,  as- 
signment or  other  disposition  of  her  said  dower  interest  in 


OF  MARYLAND.  361 


Hopkins  et.  al.,  vs.  Frey. — 1844. 


or  to  said  property,  nor  hath  she  committed  or  consented 
to  any  act,  by  which  she  could  either  legally  or  equitably 
be  divested  of  the  same.  This  complainant  further  states, 
that  she  hath  frequently  applied  to  the  said  James  M.  Hopkins 
and  the  other  defendants,  to  assign  to,  and  put  her  in  posses- 
sion of  her  dower  interest  aforesaid,  which  they,  and  each  of 
them  have  always  refused  to  do,  &c.  Prayer  for  an  assign- 
ment of  dower,  and  for  rents  and  profits. 

The  answer  of  James  M.  Hopkins  and  William  Hopkins, 
admitted,  that  it  is  true  these  defendants  are  two  of  the  heirs 
at  law  of  James  Hopkins,  deceased,  and  that  the  said  James 
Hopkins  died  possessed  of,  and  entitled  to  the  lands  and  forge 
in  Cecil  county,  called  Dixons  Exchange,  Hillis  Delight,  and 
Hillis  Addition;  that  the  said  James  Hopkins  died  intestate, 
leaving  the  following  persons  his  heirs  at  law,  to  wit,  James 
M.  Hopkins,  William  Hopkins,  &c;  that  these  defendants  have 
understood  and  believe  that  the  said  John  Frey  and  Matthew 
Irvin,  named  in  said  bill  of  complaint,  did  purchase  from  one 
Jeremiah  Brown,  the  one  undivided  moiety  of  said  lands  herein 
before  mentioned,  and  that  the  said  John  Frey  and  Matthew 
Irvin  purchased  the  other  moiety  of  said  lands  from  one  Thomas 
Rogers;  that  these  defendants  do  not  know  when  or  at  what 
time  the  said  complainant  was  married  to  the  said  John  Frey, 
and,  therefore,  do  not  admit  that  the  said  John  Frey  was,  at 
any  time  during  his  marriage  with  the  said  complainant,  seized 
in  fee,  of  said  lands.  These  defendants  are  informed  and  be- 
lieve, and  so  state  for  answer  to  the  said  bill  of  complaint, 
that  the  said  John  Frey  never  was  seized,  in  fee,  of  said  lands, 
so  as  to  entitle  the  said  complainant  to  claim  dower  in  the 
same;  that  the  said  J.  F.  and  M.  L,  at  the  time  of  their  pur- 
chase of  said  property,  conveyed  the  same,  by  way  of  mort- 
gage, to  Thomas  Rogers  and  Jeremiah  Brown,  on  5th  January 
1802,  to  secure  the  purchase  money,  so  that  in  fact,  they,  the 
said  F.  and  I.,  acquired  but  an  equitable  estate  by  their  said 
purchase;  that  the  said  mortgage  was  not  released  or  paid,  so 
as  to  give  a  fee  simple  legal  title  to  the  said  /.  F.  and  M.  L, 
or  either  of  them,  up  to  the  year  1816,  when  the  said  J.  F. 
46  v.2 


362  CASES  IN  THE  COURT  OF  APPEALS 

Hopkins  et  al.,  vs.  Frey, — 1844. 

conveyed  all  his  interest  in  said  lands  to  Jacob  Frey  and  others,, 
to  secure  them  from  loss  on  certain  liabilities  they  had  incurred 
as  the  endorsers  of  said  John  Frey,  on  certain  promissory 
notes,  and  under  that  conveyance,  the  said  Jacob  Frey  and 
others,  obtained  a  decree  of  this  honorable  court  on  the  3rd 
day  of  May  1823,  for  the  sale  of  all  the  interest  of  the  said 
John  Frey  in  said  lands,  and  all  his  interest  therein  was  ac- 
cordingly sold  by  one  Jeremiah  Cosden,  the  trustee  named  in 
said  decree,  as  will  be  seen  by  the  record  of  said  decree,  in 
the  case  of  Jacob  Frey  and  others,  against  John  Frey,  now  re- 
maining of  record  in  this  honorable  court;  that  under  and  by 
virtue  of  the  said  sale,  under  said  decree,  the  said  James  Hop- 
kins, the  father  of  these  defendants,  became  entitled  to  the 
said  lands.  These  defendants  further  shew,  that  at  the  time 
the  said  lands  were  sold  under  the  decree  aforesaid,  they  were 
of  small  value,  &c. 

These  defendants,  as  they  have  before  stated,  aver,  that  they 
do  not  admit  that  the  said  John  Frey  ever  had  any  legal  title 
to  said  lands,  but,  on  the  contrary,  state,  that  he  had  a  mere 
equity  of  redemption,  and  that  before  he  obtained  a  release  of 
the  mortgage  to  the  said  Brown  and  Rogers,  so  as  to  give  him 
a  legal  title,  he  executed  a  second  mortgage  to  Jacob  Frey 
and  others,  and  the  said  lands  were  sold  under  a  decree 
so  as  aforesaid  obtained  on  said  last  mentioned  mortgage. 
Wherefore  these  defendants,  for  answer,  aver,  that  the  said 
complainant  has  no  legal  right  to  claim  dower  in  said  lands,  &c. 
After  the  coming  in  of  the  answers,  a  commission  was  is- 
sued, and  proof  of  the  various  exhibits,  proceedings  in  chan- 
cery, mentioned  in  the  bill,  answer  and  opinion,  of  this  court, 
filed  in  the  cause;  and  on  the  27th  January  1843,  the  Chan- 
cellor (BLAND,)  decreed,  that  the  said  E.  F.  was  entitled  to 
dower,  and  ordered  a  commission  to  assign  the  same,  being  of 
opinion,  that  it  having  been  declared  that  widows  shall  be  en- 
titled to  dower  in  land  held  by  equitable  title  in  the  husband, 
it  necessarily  follows,  as  has,  in  some  respects,  been  distinctly 
specified  in  the  same  law,  that  such  title  can  only  be  affected 
in  like  manner,  as  a  title  to  dower  in  a  legal  estate ;  and  that 


OF  MARYLAND.  363 


Hopkins  et  al,  vs.  Frey. — 1844. 


the  facts  in  this  case  shew,  that  the  widow  is  entitled  to  dower 
as  directed  to  be  assigned  to  her  by  the  said  decree. 

From  this  decree,  James  M.  Hopkins  and  others,  appealed 
to  this  court. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  MAGRUDER,  J. 

By  OTHO  SCOTT  for  the  appellant,  and 
By  C.  MCLEAN  for  the  appellee. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

The  defendant  in  error,  is  the  widow  of  John  Frey,  who 
died  in  the  year  1832,  and  she  filed  this  bill,  in  order  to 
obtain  a  decree,  directing  dower  to  be  assigned  to  h.er,  in  se- 
veral tracts  of  land,  and  also,  an  account  of  the  rents  and 
profits  of  the  same.  The  Chancellor  having  decreed,  that  she 
is  entitled  to  dower,  and  to  rents  and  profits,  from  the  death 
of  her  husband,  an  appeal  has  been  prayed,  by  some  of  the 
defendants,  and  it  being  here  insisted,  that  in  regard  to  the 
lands  claimed  by  them,  the  widow  has  no  title  to  dower.  This 
is  a  question  to  be  disposed  of,  before  the  claim  to  rents  and 
profits  can  arise. 

About  the  material  facts,  there  is  no  controversy,  and  for 
the  purpose  of  showing  upon  what  grounds  the  claim  to  dower 
is  maintained  and  resisted,  the  following  statement  is  deemed 
to  be  sufficient. 

In  1802,  Frey,  the  husband,  obtained  title  to  the  land,  now 
in  controversy  in  this  court,  and  of  which  his  widow  seeks  to 
be  endowed,  and  executed  a  mortgage  to  secure  the  payment 
of  the  purchase  money.  In  the  succeeding  year,  (1803,)  he 
married  the  defendant  in  error.  In  1818,  arbitrators,  chosen 
by  the  mortgagor  and  mortgagee,  awarded,  that  the  payment 
of  the  sum  mentioned  in  the  award,  should  entitle  Frey  to  a 
good  and  sufficient  release  of  the  mortgaged  premises.  Af- 
terwards, the  mortgagees  filed  in  Chancery  their  bill,  in  order 
to  obtain  a  sale  of  the  mortgaged  premises,  and  Frey,  relying 
upon  the  award,  the  bill  was  dismissed  in  1823,  and  that  de- 
cree was  affirmed  by  the  Court  of  Appeals  in  1825. 


364  CASES  IN  THE  COURT  OF  APPEALS 

Hopkins  et  al..  vs.  Frey. — 1844 

In  1816,  (before  the  award,)  Frey  mortgaged  the  equity  of 
redemption  to  others,  who  afterwards  filed  a  bill,  and  obtained 
a  decree  to  sell  the  mortgaged  premises,  which  were  sold  15th 
July  1823,  and  from  the  purchasers  at  that  sale,  the  plaintiffs 
in  error,  derive  their  title.  Frey  was,  at  the  time  of  the  sale, 
and  for  some  years  afterwards,  alive. 

If  the  equity  of  redemption  had  not  been  mortgaged  by 
Frey,  the  widow's  claim  to  dower  could  not  be  questioned. 
The  award,  in  1816,  had  ascertained,  that  at  that  time,  a  small 
balance  was  due,  (when  the  debt  was  reduced  to  so  small  a  sum, 
no  where  appears,)  and  the  payment  by  him,  of  that  sum,  was 
necessary  to  entitle  him  to  a  re-conveyance  of  the  mortgaged 
premises.  But,  before  the  date  of  the  award,  Frey,  as  has 
been  already  stated,  mortgaged  the  equity  of  redemption,  and 
the  widow  now  claims  dower  in  the  mortgaged  premises,  from 
those  to  whom  the  equity  of  redemption  was  sold,  in  the  life 
time  of  Frey.  Can  such  a  claim  be  maintained  in  Chancery? 

Dower,  (Justice  Story  remarks,)  is  a  mere  legal  right,  and  a 
court  of  equity,  in  assuming  concurrent  jurisdiction  with  courts 
of  law,  upon  the  subject  professedly,  acts  upon  the  legal  right, 
(for  dower  does  not  attach  upon  any  equitable  estate.)  In 
some  of  our  sister  States,  the  wife  is  allowed  dower  in  an  equity 
of  redemption.  In  England,  the  law  is  different.  "A  widow, 
(says  Cruise,  2  vol.  9  sect.  p.  151,  Jim.  ed.,)  is  not  allowed 
dower  out  of  an  equity  of  redemption  of  a  mortgage  in  fee,  upon 
the  principle,  that  an  equity  of  redemption  is  analagous  to  a 
trust  estate."  See  also,  Dixon  vs.  Saville,  and  others,  1st 
Brown's  Ch.  C.,  326.  Our  State  adheres  to  the  English  law, 
upon  the  subject  of  dower,  except  when,  and  so  far  as  it  may 
be  changed  by  our  legislature.  In  the  case  of  Ford,  and  others, 
against  Philpot,  and  others,  decided  in  1821,  (see  5  Harr. 
Sf  John.  312,)  the  court,  in  pronouncing  its  opinion,  said,  "no 
right  of  dower  can  arise,  (and  for  this  exception,  no  substan- 
tial reason  can  be  given,  and  now  no  longer  exists,)  on  the 
mortgagors'  interest."  The  words,  "and  no  longer  exists," 
evidently  allude  to  the  act  of  1818,  ch.  193,  sec.  10,  and  the 
next  enquiry  is,  does  this  law  authorize  the  claim  of  dower  in 
a  case  like  this  ? 


OF  MARYLAND.  365 


Georgia  Insurance  &  Trust  Co.  vs.  Dawson. — 1844. 


It  is  a  sufficient  answer  to  this  claim,  when  it  is  attempted 
to  establish  it  by  this  act  of  Assembly,  to  say  the  law  was 
passed  after  the  execution  of  the  mortgage.  There  is  nothing 
in  the  words  of  the  law,  nor  in  any  supposed  design  of  those 
who  enacted  it,  which  would  justify  us  in  concluding,  that  an 
equitable  estate,  which  had  belonged  to  the  husband,  but  had 
been  mortgaged  before  the  passage  of  the  law,  and  sold  in  his 
life  time,  is  an  estate  of  which  the  husband's  widow  could  be 
endowed.  Surely  this  would  not  be  a  sound  construction  of  a 
law,  which  expressly  refuses  dower  in  an  equitable  interest, 
"if  the  same  be  devised  by  a  will,  made  before  the  passage  of 
this  act,"  and  which,  too,  is  careful  to  provide,  that  to  entitle 
her  to  dower  in  any  equitable  interest,  it  must  be  "held  by 
equitable  title  in  the  husband." 

The  words,  it  is  believed,  are  sufficiently  explicit,  to  prevent 
the  law  from  operating  to  the  prejudice  of  the  rights  of  any, 
but  creditors,  heirs,  and  the  devisees  in  a  will,  made,  after  its 
passage. 

Decree  to  be  reversed,  bill  dismissed,  (as  far  as  it  seeks  re- 
lief against  the  plaintiff  in  error,)  and  with  costs  in  this  court, 
and  the  Court  of  Chancery. 

DECREE  REVERSED  AND  BILL  DISMISSED. 


THE  GEORGIA  INSURANCE  AND  TRUST  Co.  vs.  F.  DAWSON 
AND  P.  T.  DAWSON. — December  1844. 

Upon  a  valued  policy  on  cargo,  tin,  shipped,  or  to  be  shipped,  "at  and  from 
New  York  to  Baltimore,"  the  assured  may  recover  a  partial  loss,  for  dam. 
age  by  sea  water,  caused  by  the  perils  of  the  seas,  though  the  tin  was  not 
properly  dunnaged  and  stowed. 

Underwriters  are  liable  for  a  loss,  the  proximate  cause  of  which,  is  one  of  the 
risks  enumerated  in  their  policy,  though  the  remote,  cause  may  be  traced  to 
the  negligence  of  the  master  and  mariners. 

The  liability  of  the  ship  owner  to  the  shipper  for  the  negligence  of  the  mas- 
ter and  crew,  cannot  avail  the  insurer  as  a  defence.  Upon  payment  of  the 
damage,  the  insurer  may  be  subrogated  to  all  the  rights  of  the  insured 
against  the  person  answerable  for  bad  stowage  and  dunnage. 

The  act  of  1832,  ch.  280,  is  not  repealed  by  the  act  of  1834,  ch.  89.  The 
latter  gives  to  the  creditors  of  foreign  corporations  an  additional  remedy. 


366  CASES  IN  THE  COURT  OF  APPEALS 

Georgia  Insurance  &  Trust  Co.  va.  Dawson. — 1844. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  attachment  commenced  on  the  9th  October 
1840,  by  the  appellees  against  the  appellants,  upon  the  follow- 
ing contract  of  insurance,  viz  : 

"Policy  No.  31.  Insured  $3,500.  Baltimore,  llth  No- 
vember, 1837.  In  consideration  of  the  sum  of  seventeen  dol- 
lars, fifty  cents,  the  Georgia  Insurance  and  Trust  Company  do 
hereby  insure  William  Dawson  and  Co.,  and  whom  it  may 
concern,  against  all  risks  to  the  amount  of  thirty-five  hundred 
dollars,  on  three  hundred  boxes  tin  valued  thereat,  shipped, 
or  to  be  shipped  on  board  the  schooner  Edward  Vincent,  at 
and  from  New  York  to  Baltimore,  according  to  order  of 
this  date.  John  G.  Proud  fy  Co.,  agents.  $3.500  at  one-half 
per  cent.,  $17.50.  Policy  50  18." 

It  was  accompanied  with  a  statement  of  particular  average, 
showing  damage  to  $994.27,  and  the  usual  affidavits  against 
the  defendants,  a  company  not  incorporated  by  the  State  of 
Maryland. 

The  defendants  appeared  by  consent,  and  pleaded  non 
assumpsit.  The  jury  found  a  verdict  for  the  plaintiffs.  The 
defendant  moved  in  arrest  of  judgment  generally. 

At  the  trial  of  this  cause,  the  plaintiffs,  to  maintain  the  issue 
on  their  part,  offered  in  evidence  to  the  jury,  that  being  the 
owners  of  three  hundred  boxes  of  tin,  at  New  York,  they  ship- 
ped the  same  on  board  the  schooner  Edward  Vincent,  for  Bal- 
timore, and  proved  their  bill  of  lading  for  the  same. 

That  the  defendants  being  an  insurance  company,  chartered 
by  the  State  of  Georgia,  and  not  chartered  by  the  laws  of  this 
State,  but  transacting  business,  and  holding  and  exercising 
franchises  in  this  State,  by  its  agents  John  G.  Proud  and 
Francis  H.  Smith,  who  are  and  were  citizens  of  the  State  of 
Maryland,  resident  in  the  city  of  Baltimore,  and  acting  as 
such  agents  under  the  firm  of  John  G.  Proud  and  Company, 
insured  the  said  tin  upon  the  said  voyage,  by  the  aforesaid 
policy.  That  on  the  said  voyage,  the  said  schooner  encoun- 
tered gales  and  storms,  which  caused  her  to  leak  badly  ;  and 
on  the  arrival  of  the  said  schooner  at  Baltimore,  the  said  tin 


OF  MARYLAND.  367 


Georgia  Insurance  &  Trust  Co.  vs.  Dawson. — 1844. 

was  found  to  be  damaged  by  salt  water,  in  consequence  of  the 
said  storms  and  gales,  to  the  amount  claimed  by  the  plaintiffs. 
The  defendants,  to  maintain  the  issue  on  their  part,  offered 
in  evidence  to  the  jury,  that  the  said  tin  was  stowed  upon 
sand  ballast,  and  badly  and  insufficiently  duntraged,  and  that 
the  risk  upon  said  tin  thus  stowed,  was  greater  than  if  the 
stowage  and  dunnage  of  the  same  had  been  usual,  sufficient, 
and  proper. 

The  plaintiffs,  in  order  further  to  maintain  the  issue  on  their 
part,  offered  in  evidence  to  the  jury,  that  the  stowage  upon 
sand  ballast,  was  usual  and  customary ;  and  that  the  stowage 
and  dunnage  of  the  tin  in  this  case  was  good  and  sufficient. 
Whereupon  the  defendants  prayed  the  court  to  instruct  the 
jury: 

1st.  If  the  jury  shall  believe  from  the  evidence,  that  the 
damage  done  to  the  tin  insured,  was  owing  to  the  neglect  of 
the  master  in  improperly  stowing  and  dunnaging  the  same, 
then  they  must  find  for  the  defendants ;  although  they  may 
also  believe  that  the  injury  done  to  the  tin  was  occasioned  by 
contact  with  salt  water,  introduced  by  leakage  of  the  vessel, 
which  leakage  was  occasioned  by  storms  and  gales. 

2nd.  If  the  jury  shall  believe  from  the  evidence,  that  the 
stowage  and  dunnage  of  the  tin  insured,  was  such  as  to  ex- 
pose it  to  more  than  ordinary  risk,  then  they  must  find  for  the 
defendant,  unless  they  shall  also  believe  that  such  risk  was  in 
the  contemplation  of  the  parties  at  the  time  of  effecting  the 
insurance. 

3rd.  If  the  jury,  believe  from  the  evidence,  that  owing  to 
the  negligent  and  improper  manner  in  which  the  tin  in  contro- 
versy in  this  case  was  stowed  and  dunnaged,  the  schooner 
Edward  Vincent  was  -not  sea-worthy  for  the  safe  transporta- 
tion of  the  tin  against  leakage,  and  the  ordinary  perils  of  the 
sea,  upon  the  voyage  from  New  York  to  the  port  of  Baltimorey 
then  the  plaintiffs  are  not  entitled  to  recover  in  this  case,  not- 
withstanding the  jury  may  believe  that  the  said  schooner  was 
sea-worthy  in  other  respects. 


368  CASES  IN  THE  COURT  OF  APPEALS 

Georgia  Insurance  &  Trust  Co.  vs.  Dawson.  —  1844. 


Which  instruction,  as  asked  in  the^r^  and  third  prayers, 
the  court,  (MAGRUDER  and  PURVIANCE,  A.  J.,)  refused  to 
grant  ;  and  as  asked  in  the  second  prayer,  the  court  refused, 
so  far  as  it  was  in  conflict  with  the  instruction  asked  by  the 
plaintiff's  prayer. 

And  the  plaintiffs  prayed  the  court  to  instruct  the  jury, 
"  If  the  jury  believe,  that  at  the  inception  of  the  voyage  the 
schooner  Edward  Vincent  was  tight,  staunch,  and  strong,  and 
properly  officered,  manned,  and  equipped,  having  a  compe- 
tent master  and  crew  ;  and  if  the  jury  further  find,  that  on  the 
voyage  of  said  vessel  from  New  York  to  Baltimore,  through 
storms  and  perils  of  the  sea,  the  tin  in  question  was  damaged 
and  injured  to  the  extent  claimed  by  the  plaintiffs  in  this  case, 
that  plaintiffs  are  entitled  to  recover,  although  the  jury  believe 
that  the  dunnage  of  said  vessel  and  cargo  was  negligently 
fixed  and  arranged  by  the  master  and  mariners  of  said  vessel, 
and  that  such  negligent  fixing  and  arranging  of  the  cargo,  was 
the  remote  cause  of  its  loss." 

Which  instruction  the  court  gave.  To  which  refusal  and 
instruction  by  the  court,  the  defendants  excepted. 

The  defendants  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  MAGRUDER,  J. 

BY  ST.  GEORGE  W.  TEACKLE  for  the  appellants,  and 
By  GLENN  for  the  appellees. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

The  defendants  in  error,  being  about  to  ship  a  quantity  of 
tin  from  New  York  to  Baltimore,  the  plaintiff  in  error  under- 
took, for  the  premium  agreed  upon,  to  insure  the  same  to  the 
amount  of  $3,500,  shipped,  or  to  be  shipped  on  board  the 
schooner  Edward  Vincent,  at  and  from  New  York  to  Baltimore. 

On  the  voyage,  the  vessel  encountered  gales  and  storms, 
which  caused  her  to  leak  badly,  and  the  tin  insured  was  dis- 
covered, on  its  arrival  at  Baltimore,  to  be  damaged  by  salt 
•water,  in  consequence  of  the  gales  and  storms,  which  the  ves- 


OF  MARYLAND.  369 


Georgia  Insurance  &.  Trust  Co.  vs.  Dawson. — 1844. 

sel  encountered,  and  for  the  amount  of  the  damages  done  to 
the  property  insured  as  aforesaid,  this  action  was  brought. 

These  facts  are  not  denied,  but  the  plaintiff  in  error  resists 
the  claim,  upon  the  ground  that  the  tin  insured  was  stowed 
upon  sand  ballast,  and  badly  and  insufficiently  dunnaged,  and 
that  the  risk  was  greater,  than  if  the  stowage  and  dunnage  of 
the  same,  had  been  usual,  sufficient,  and  proper.  These  facts 
too,  the  points  which  were  raised,  in  the  court  below,  require 
us  to  assume. 

A  verdict  having  been  obtained  by  the  defendants  in  error, 
a  motion  in  arrest  of  judgment  was  made,  and  this  because, 
as  was  contended,  the  remedy  which  is  given  against  foreign 
corporations  by  the  act  of  1832,  ch.  280,  is  taken  away  by  a 
subsequent  law,  passed  in  1834,  ch.  89.  This  motion  was 
properly  over-ruled.  The  latter  gives,  and  was  designed  to 
give,  to  the  creditors  of  such  corporations,  an  additional  reme- 
dy, and  cannot  be  interpreted  to  deprive  the  defendant  in  er- 
ror, of  the  remedy  which  the  previous  law  afforded  to  him. 

The  questions  which  remain  to  be  decided,  are  presented 
by  the  bills  of  exceptions,  taken  in  the  progress  of  the  trial,  by 
the  plaintiffs  in  error. 

On  the  part  of  the  defendant,  it  is  contended,  that  the  dam- 
age done  to  the  tin,  was  occasioned  by  the  perils  of  the  sea, 
and  that  the  gales  and  tempests,  which  the  vessel  encountered, 
being  the  proximate  cause  of  the  loss,  they  are  entitled  to 
recover,  even  although  his  adversary  has  found  in  wrong 
stowage  and  dunnage,  what  is  called  a  remote  cause  of  such 
damage. 

Much  of  controversy  has  arisen  upon  the  question,  which 
is  here  presented,  and  by  many  it  has  been  insisted,  that 
although  the  loss  be  occasioned  by  any  of  the  perils  men- 
tioned in  the  policy,  yet  the  insurer  is  not  liable,  if  there 
can  be  found  another  and  remote  cause  of  the  loss,  and 
it  can  be  ascribed  to  misconduct,  or  negligence  of  the  captain 
and  crew,  the  same  not  amounting  to  barratry.  Chancellor 
Kent,  in  the  chapter  of  his  Commentaries,  which  treats  of  the 
law  of  insurance,  (in  the  edition  of  1828,)  refers  to  decisions, 
47  v.2 


370  CASES  IN  fHE  COURT  OF  APPEALS 

Georgia  Insurance  &.  Trust  Co.  vs.  Dawson. — 1844. 

for  and  against  the  insurer,  and  adds:  "It  may  be  expedient 
to  suspend  our  own  judgment,  under  such  a  sad  uncertainty 
of  the  law,  and  leave  the  question  for  further  judicial  investi- 
gation, since  an  eminent  judge  of  the  Supreme  Court  of  the 
United  States,  (Justice  Story,)  has  thought  proper  to  take  this 
course."  A  number  of  decisions,  both  in  England  and  this 
country  have,  since  then,  taken  place  on  this  once  very  vexed 
question,  and  in  1837,  (see  llth  Peters  220,)  Justice  Story 
said,  that  in  the  case,  10  Peters  507,  "the  court  thought,  that 
in  marine  policies,  whether  containing  the  risk  of  barratry  or 
not,  a  loss  whose  proximate  cause  was  a  peril  insured  against. 
is  within  the  protection  of  the  policy,  notwithstanding,  it 
might  have  been  occasioned  remotely  by  the  negligence  of  the 
master  and  mariners.  We  see  no  reason  to  change  that  opin- 
ion; and,  on  the  contrary,  upon  the  present  argument,  we  are 
confirmed  in  it."  In  these  two  cases,  (10  Sf  11  Peters ,)  are 
cited  most  of  the  English  cases,  in  which  the  question  was 
decided.  The  reported  decisions  of  some  of  our  sister  States, 
furnish  other  cases,  establishing  the  same  doctrine,  and  this 
court  can  feel  no  disposition,  in  deciding  this  case,  to  depart 
from  the  rule  stare  decisis.  It  is  to  be  understood  then  to  be 
the  settled  law  of  Maryland,  "that  the  underwriters  are  liable 
for  a  loss,  the  proximate  cause  of  which,  is  one  of  the  enu- 
merated risks,  though  the  remote  cause  may  be  traced  to  the 
negligence  of  the  master  and  mariners." 

It  is  however  contended  by  the  plaintiff  in  error,  that  the 
cases  referred  to  do  not  settle  the  law  of  this  case;  that  these 
cases  only  establish,  that  a  policy,  which  being  once  attached, 
is  not  discharged  by  reason  of  the  remote  cause  of  the  loss  or 
damage  sustained  by  the  assured,  but  in  the  case  now  under 
consideration,  the  question  is,  whether  the  policy  ever  attached? 
The  reason  of  this  distinction,  however,  between  this  and  the 
other  cases  is  not  perceived.  The  policy  is  on  a  cargo,  ship- 
ped, or  to  be  shipped  on  board  of  a  vessel,  at  and  from  New 
York  to  Baltimore.  If  the  policy  had  said  not  "at  and  from," 
but  "from  N.  York  to  Baltimore,"  the  risk  would  have  com- 
menced only  when  the  vessel  broke  ground;  but  as  the  Ian- 


OF  MARYLAND.  371 


Georgia  Insurance  &  Trust  Co.  vs.  Dawson. — 1844. 

guage  here  used,  is  "at  and  from  New  York  to  Baltimore,"  it 
is  understood,  to  "include  all  the  time  the  ship  is  in  port,  after 
the  policy  is  subscribed,  and  the  goods  are  on  board,  #c." 

The  owners,  &c.,  of  the  vessel,  it  is  said,  are  the  agents  of 
the  assured,  and  are  answerable  to  the  shippers  for  any  da- 
mage, which  is  the  consequence  of  bad  stowage.  This  may  be 
so,  but  still  we  are  told,  2  Barn,  fy  Aid.  82,  that  "a  loss,  whose 
proximate  cause,  is  one  of  the  enumerated  risks  in  the  policy, 
is  chargeable  to  the  underwriters;  although  the  remote  cause 
may  be  traced  to  the  negligence  of  the  master  and  mariners." 
The  act  of  insuring,  is  the  voluntary  act  of  the  insurer;  he 
can  prescribe  the  terms  on  which  he  will  underwrite;  may 
undertake  as  few  or  as  many  risks  as  he  pleases,  and  in  the 
policy  of  insurance,  may,  if  he  thinks  proper,  insert  such  clau- 
ses as  will  secure  him  against  all  liability,  if  the  stowage  and 
dunnage  be  not  as  they  ought  to  be.  If  there  be  no  such  express 
warranty  on  the  part  of  the  owner  of  the  cargo,  still  the  under- 
writer may  rely  on  the  implied  warranty,  and  is  discharged, 
if  the  warranty  express  or  implied,  will  exonerate  him. 
Now,  it  is  not  pretended,  that  in  this  case  the  underwriter  can 
claim  to  be  discharged,  by  any  express  warranty.  Does  the 
implied  warranty  furnish  him  with  a  defence  ?  By  effecting 
a  policy,  whether  it  be  on  the  ship,  freight,  or  cargo,  or  the 
commissions  or  profits,  to  accrue  upon  the  cargo,  the  assured 
is  always  understood  to  warrant,  that  the  ship  is  sea- worthy,  or 
the  materials  of  which  the  ship  is  made,  its  construction,  the 
qualifications  of  the  captain,  the  number  and  description  of 
the  crew,  the  tackles,  sails  and  rigging,  stores,  equipment  and 
outfit  generally,  are  such  as  to  render  the  ship,  in  every  respect, 
&t  for  the  voyage  insured.  Phillips  on  Insurance,  113.  (Am. 
edit.,  1823.)  The  policy  implies  the  seaworthiness  of  the  ship. 
To  render  a  ship  seaworthy,  it  must  be  staunch,  and  of  sound 
materials,  or  rather,  it  must  be  sufficiently  staunch  and  sound, 
for  the  employment  or  situation  intended  by  the  insurance. 
Phillips  113.  The  author  then  proceeds  to  explain,  that 
this  relates  to  the  beginning  of  the  risk,  that  the  breach  of 
the  warranty,  discharges  the  underwriter  from  all  subsequent 


372  CASES  IN  THE  COURT  OF  APPEALS 

Georgia  Insurance  &  Trust  Co.  vs.  Dawson. — 1844. 

liability;  that  the  vessel  must  be  of  proper  construction,  must 
have  sufficient  stores  and  supplies,  must  have  a  skilful  master 
and  competent  crew,  and  a  competent  pilot,  where  it  is  cus- 
tomary to  take  one,  but  no  where  tells  us,  that  this  warranty 
ex  m  termini,  implies  any  thing,  with  regard  to  the  stowage 
or  dunnage  of  the  vessel,  which  it  certainly  would  be  unrea- 
sonable to  expect,  that  the  owners  of  the  articles  insured,  would 
attend  to. 

But  it  is  said,  that  the  liability  of  the  insurer  does  not  com- 
mence, until  the  articles  insured  are  placed  as  they  ought  to 
be.  In  3rd  Kent,  310,  (3rd  edit.,)  the  doctrine  is  not  so  laid 
down. 

There  would  seem  to  be  no  good  reason  for  this,  as  it  is 
generally  understood,  that  afterwards,  and  even  after  the  ves- 
sel has  left  the  port  for  some  time,  it  is  the  right,  and  generally 
the  duty  of  the  master,  to  arrange  the  cargo  differently,  to  trim 
the  ship;  and  it  is  not  contended,  that  because  of  a  mistake 
then  committed,  the  underwriter  must  be  discharged. 

The  owners  of  the  ship,  it  is  said,  are  answerable  to  the 
shipper,  for  any  damage  in  consequence  of  bad  stowage.  It 
does  not  thence  follow,  that  the  underwriter  is  discharged.  If 
damages  are  to  be  recovered,  because  of  the  manner  in  which 
goods  on  board  of  a  vessel  are  stowed  away,  it  would  seem 
to  be  but  right,  that  in  the  action,  which  is  to  decide  whether 
the  damage  was  the  result  of  bad  stowage,  the  owner  should 
be  the  party  defendant,  and  that  such  a  question  should  not 
arise  in  an  action,  upon  the  policy  of  insurance;  and  who  is 
so  fit  a  person  to  be  the  plaintiff  in  the  action,  to  recover 
damages  for  any  such  negligence  or  unskilfulness,  as  the  in- 
surer himself,  who  by  relying  on  such  a  defence,  proves,  that 
he  is  in  possession  of  the  proof,  and  if  there  had  been  no  sub- 
sequent loss  or  damage  of  the  articles  insured,  might  have 
retained  the  premium,  and  concealed  the  damage  occasioned 
by  the  bad  stowage,  which  perhaps,  lessened  the  value  of  the 
article  when  sold?  If  the  insurer  be,  as  he  alleges,  in  posses- 
sion of  proof,  to  fix  the  loss  of  the  cargo  upon  the  owner  or 
captain,  he  becomes  entitled,  upon  payment  of  the  amount  of 


OF  MARYLAND.  373 


Georgia  Insurance  &  Trust  Co.  vs.  Dawson. — 1844. 

he  loss  or  damage,  to  stand  in  the  place  of  the  owner,  and  to 
be  subrogated  to  all  his  rights  against  the  person  answerable 
for  bad  stowage  or  dunnage. 

The  conclusive  answer  however,  to  all  that  was  urged  on 
this  subject,  is  lo  be  found  in  the  decisions  alluded  to,  in  Eng- 
land and  America,  and  which  have  established,  that  in  case  of 
loss,  the  consequence  of  the  negligence  or  fault  of  the  assur- 
ed, their  agents  or  servants,  the  underwriters  will  be  liable, 
provided  the  proximate  cause  of  the  loss  or  damage  be  one 
of  the  enumerated  risks  in  the  policy.  The  good  effects 
which  are  anticipated  by  an  adherence  in  such  cases  to  the 
maxim,  "causa  proxima,  non  remota  spectatur"  would  be  en- 
tirely lost,  if  in  an  action  upon  the  policy,  the  defendant  might 
insist  upon  one,  yet  more  remote  than  the  remote  cause,  which 
it  is  settled,  can  furnish  the  insurer  with  no  defence.  In  the  case 
of  Waltron  vs.  Maitland,  5  Barnwell  Sf  Aide.  174,  the  judge 
said,  "no  decision  can  be  cited,  wherein  such  a  case,  (the  loss 
by  a  peril  of  the  sea,)  the  underwriters  have  been  held  to  be 
excused,  in  consequence  of  the  loss  having  been  remotely 
occasioned  by  the  negligence  of  the  crew.  I  am  afraid  of  lay- 
ing down  any  such  rule.  It  will  introduce  an  infinite  number 
of  questions  as  to  the  quantum  of  care,  which,  if  used,  might 
have  prevented  the  loss."  Justice  Story,  in  delivering  the 
opinion  of  the  court,  in  Waters  vs.  Louisville  Insurance  Com- 
pany, observes,  "if  negligence  of  the  master  or  crew  were, 
under  such  circumstances,  a  good  defence,  it  would  be  per- 
fectly competent  and  proper  to  examine  on  the  trial,  any  sin- 
gle transaction  of  the  whole  voyage,  and  every  incident  of  the 
navigation  of  the  whole  voyage,  whether  there  was  due  dili- 
gence, in  all  respects,  in  hoisting  or  taking  in  sail,  in  steering 
the  course,  in  trimming  the  ship,  in  selecting  the  route,  in 
stopping  in  port,  in  hastening  or  retarding  the  operations  of 
the  voyage;  for  all  these  might  be  remotely  connected  with 
the  loss.  If  there  had  been  more  diligence,  or  less  negligence, 
the  peril  might  have  been  avoided,  or  escaped,  or  never  en- 
countered at  all.  Under  such  circumstances,  the  chance  of  a 
recovery  upon  a  policy,  for  any  loss,  from  the  peril  insured 


374  CASES  IN  THE  COURT  OF  APPEALS 

Seidenstricker  vs.  the  State. — 1844. 

against,  would  of  'itself  \  be  a  risk  of  no  inconsiderable  hazard :" 
and  surely,  this  reasoning,  applies  to  the  case  now  under  con- 
sideration, and  to  the  defence  which  is  relied  on.  Policies  of 
insurance  would  seldom  be  contracts  of  indemnity,  if,  when 
the  actual  peril  insured  against  has  occurred, -the  payment  of 
the  loss  depended  upon  every  act,  in  regard  to  the  properly 
insured,  which,  by  possibility,  might  have  increased  the  risk 
of  loss. 

The  court  can  discover  no  error,  either  in  the  instruction 
which  was  given,  at  the  instance  of  the  counsel,  for  the  plain- 
tiff below,  or  in  the  refusal  to  give  the  instructions,  which  were 
asked  by  the  defendant  below. 

JUDGMENT    AFFIRMED. 


JOHN  B.  SEIDENSTRICKER  vs.  THE  STATE  OF  MARYLAND. — 
December,  1844. 

By  the  act  of  1st  April  1841,  ch.  23,  imposing  a  direct  tax  of  twenty  cents 
in  the  hundred  dollars,  it  was  designed,  that  such  tax  should  be  paid  into 
the  treasury,  and  the  collector's  commissions,  by  the  counties  or  cities  res- 
pectively, making  the  levy,  by  an  additional  levy,  and  not  by  the  treasury. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  assumpsit,  brought  to  September  term 
1844,  of  said  court,  by  the  State  against  the  appellant,  as  col- 
lector of  State  taxes  for  the  city  of  Baltimore,  for  money 
collected.  The  defendant  pleaded  non  assumpsit. 

Judgment  was  rendered  for  the  plaintiff,  subject  to  the  ad- 
mission, "that  there  is  a  sum  of  money  in  the  hands  of  the 
defendant,  collected  by  him  on  account  of  taxes  due  under  the 
act  of  1841,  but  he  claims  to  retain  the  same  on  the  ground 
that  he  looks  to  the  State  for  his  commissions  as  collector,  and 
has  a  right  to  retain  for  his  commissions.  The  question  is 
submitted  to  the  court,  whether  the  State  or  the  city  of  Balti- 
more is  to  pay  the  defendant  his  commissions.  It  is  agreed, 


OF  MARYLAND.  375 


Seidenstricker  vs.  the  State. — 1844. 


that  a  pro  forma  judgment  for  $100  may  be  entered  in  favor 
of  the  plaintiff,  with  the  right  to  the  defendant  of  appealing 
to  the  Court  of  Appeals,  to  have  said  question  decided  there, 
and  judgment  entered  there  in  accordance  with  the  opinion  of 
the  court." 

The  defendant  accordingly  prosecuted  this  appeal. 

The  cause  was  argued  before  .ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  MAGRUDER,  J. 

By  T.  P.  SCOTT  and  MARSHALL  for  the  appellants,  and 
By  STEELE,  D.  A.  G.,  for  the  State. 

CHAMBERS,  J.,  delivered  the  opinion  of  this  court. 

The  sole  question  in  this  case  is,  whether,  by  the  true  inter- 
pretation of  the  act  of  1st  April  1841,  ch.  23,  imposing  a 
direct  tax,  the  twenty  cents  in  the  hundred  dollars,  thereby 
directed  to  be  levied,  included  the  commission  allowed  to  col- 
lectors, or  whether  such  commissions  were  to  be  paid  by  an 
additional  levy. 

The  62nd  section  directs  the  counties  to  defray  all  expenses 
not  provided  for  by  the  law.  The  only  provision  which  could 
be  contemplated,  must  have  been  a  provision  for  the  payment 
of  such  expense.  If  an  expense  provided  for,  is  taken  to  be 
an  expense  which  the  act  directs  to  be  incurred,  then  all  the 
expenses  incident  to  the  execution  of  this  law  are  provided 
for.  Thus  the  27th  section  directs  the  clerks  of  the  levy 
courts  to  perform  certain  duties,  for  such  compensation  as  the 
said  courts  may  deem  proper.  The  47th  section  directs  the 
collectors  to  perform  certain  duties  for  a  compensation,  (not 
less  than  three,  nor  more  than  six  per  centum  on  the  monies 
paid  by  him,)  to  be  fixed  by  the  said  levy  courts.  In  neither 
is  it  expressly  said,  out  of  what  fund  shall  the  compensation 
be  taken.  Is  the  expense  in  the  one  case  provided  for  by  the 
act,  and  not  in  the  other?  The  46th  section  makes  it  the 
duty  of  the  collectors  to  collect  certain  proportions  of  the  tax 
on  or  before  certain  specified  days ;  and  the  47th  section  re- 
quires them,  on  the  same  days,  to  pay  over  to  the  collector  all 


376  CASES  IN  THE  COURT  OF  APPEALS 

Tyson  vs.  Mickle,  et  al— 1844. 

monies  collected,  or  which  ought  to  have  been  collected  on 
those  days  respectively,  evidently  intending,  that  the  payment 
should  be  of  the  proportions  of  the  assessment,  which  propor- 
tions were,  in  the  contemplation  of  the  legislature,  aliquot 
parts  of  the  whole  assessment. 

Some  reliance  has  been  placed  on  the  language  of  the 
47th  section,  which  gives  the  commission  on  the  money  "paid 
into  the  treasury,"  arid  not  on  the  amount  collected;  but  it  will 
appear,  by  reference  to  the  45th  section,  that  so  far  as  relates 
to  the  counties  for  which  collectors  are,  by  the  act  appointed, 
the  per  centum  allowed  for  commission,  appears  to  be  allowed 
as  to  some,  on  the  amount  paid  over,  and  as  to  others,  on  the 
amount  assessed,  in  cases  where  it  was  quite  impossible  to 
design  thereby,  any  difference  in  the  fund  from  which  they 
were  to  be  paid. 

We  think  it  clear,  from  all  the  sections  referred  to,  that  the 
act  designed  the  clear  sum  of  twenty  cents  in  the  hundred 
dollars  to  be  paid  into  the  treasury. 

JUDGMENT  AFFIRMED. 


ELIZABETH  TYSON  vs.  ROBERT  MICKLE,  AND  OTHERS. — 
December,  1844. 

The  trustees  appointed  by  decree  to  sell  real  property,  on  the  2lst  June  1841, 
and  12th  October  1842,  offered  it  at  public  sale  without  success.  A  mini- 
mum price  was  then  agreed  on  by  the  parties,  and  the  property  offered  at 
private  sale,  without  avail.  The  trustees  and  parties  concerned,  then  agreed 
to  sell,  at  private  sale,  for  a  fixed  sum,  if  that  could  be  obtained,  and  after 
unusual  efforts,  a  purchaser  was  procured  at  that  sum.  Under  such  cir- 
cumstances, as  the  Chancellor  would  have  authorized  the  sale  in  the  ab- 
sence of  all  proof  to  impeach  it,  he  properly  ratified  it,  though  one  of 
the  parties  to  the  cause  objected  to  it,  as  a  sacrifice  of  his  interest. 

When  a  trustee  exercises  a  power,  which,  if  previously  applied  for,  would  have 
been  granted,  as  it  were,  as  a  matter  of  course,  a  court  of  equity,  in  the 
absence  of  proof  showing  the  inexpediency  and  injustice  of  so  doing,  will 
ratify  the  act  done  in  the  same  manner  as  if  the  requisite  authority  had 
been  applied  for,  and  granted. 

The  report  of  a  sale  made  by  trustees  of  the  court,  and  their  answers  to  a 
petition  impeaching  their  sale,  must  be  credited,  until  over-ruled  by  proof. 


OF  MARYLAND.  377 


Tyson  vs.  Mickle,  et  al.— 1844. 


Where  a  will  devising  real  property  authorized  its  sale  upon  the  consent  of 
the  testator's  widow,  her  consent,  to  a  decree  for  the  sale,  is  a  sufficient  com- 
pliance with  the  requisition  of  the  will. 

Improvement  in  price,  arising  from  a  general  enhancement  in  value  since  the 
sale,  is  no  ground  for  setting  aside  a  sale  made  under  a  decree. 

The  ratification  or  rejection  of  a  sale  must  depend  on  the  state  of  circum- 
stances existing  at  its  date,  not  on  subsequent  contingencies ;  depreciation 
of  property  is  at  the  risk  of  the  purchaser,  and  he  must  reap  the  fruits  of 
appreciation. 

APPEAL  from  the  Court  of  Chancery. 

On  the  25th  March  1841,  the  appellant,  by  her  next  friend, 
Thomas  Tyson,  with  others,  filed  their  bill  in  Chancery  against 
the  appellees,  praying  a  sale  of  certain  real  estate.  After  an- 
swers filed,  on  the  18th  May  1841,  the  Chancellor  decreed  a 
sale  of  the  property  for  such  part  of  the  purchase  money  in 
cash  and  on  credit,  as  the  trustees  appointed  by  the  decree 
should  decide  upon. 

On  the  18th  March  1842,  the  trustees  reported,  that  owing 
to  the  extreme  depression  of  the  property,  they  had  not  yet 
been  able  to  sell,  nor  did  they  think  that  any  future  effort  to 
make  sale  thereof,  at  the  present  time,  would  be  prudent.  That 
there  is  a  large  quantity  of  iron  attached  to  the  building  upon 
the  said  property,  and  lying  about  the  premises,  and  used  in 
the  construction  of  the  machinery  thereto,  which  is  daily  be- 
coming of  less  value,  and  which,  it  is  represented  to  your  pe- 
titioners, it  would  be  to  the  interest  of  all  parties  to  dispose  of 
at  once,  by  a  separate  sale  from  the  rest  of  the  real  estate ; 
wherefore,  your  petitioners  pray  that  they  may  be  empowered 
by  order  of  court,  with  the  consent  of  the  parties  inter- 
ested, to  dispose  of  the  said  iron  and  machinery  at  once, 
and  by  a  sale  separate  from  the  rest  of  the  property.  This 
petition  the  Chancellor  dismissed. 

On  the  19th  December  1843,  the  trustees,  Robert  Mickle 
and  G.  L.  Dulany,  reported  to  the  Chancellor,  that  after  giving 
bond  with  security,  &c.,  they  did,  in  pursuance  of  notice, 
attend  on  the  premises,  at  Ellicotts  Mills,  on  the  21st  June 
1841,  at  twelve  o'clock,  and  then  and  there  proceeded  to  offer 
the  said  real  estate  for  sale,  when  not  obtaining  a  bid,  the 
48  v.2 


378  CASES  IN  THE  COURT  OF  APPEALS 

Tyson  vs.  Mickle,  et  al.— 1844. 

property  was  withdrawn,  and  offered  at  private  sale ;  but  not 
being  able,  in  this  way,  to  dispose  of  it,  it  was  again  offered 
at  public  auction,  upon  the  tenns  and  at  the  place  aforesaid, 
on  the  12th  October  1842,  after  a  longer  notice  than  required 
by  the  decree  had  been  given,  &c.,  when  the  highest  bid  made 
for  said  property  was  $12,150.  That  the  trustees,  in  confor- 
mity with  the  understanding  existing  between  them  and  the 
other  parties  interested,  including  Thomas  Tyson,  the  father 
and  guardian  of  the  infant,  Elizabeth  Tyson,  that  said  property 
should  be  limited  to  $15,000,  refused  the  said  bid  and  again 
offered  (advertised,)  it  at  private  sale,  and  made  unusual  ex- 
ertions to  obtain  a  purchaser  on  favorable  terms,  without  suc- 
cess ;  when  it  was  thought  advisable  by  the  trustees  and  parties 
interested,  to  sell  the  said  property  for  $10,000,  if  so  much 
could  be  obtained  for  it ;  that  the  assent  of  the  said  Thomas 
Tyson,  father  of  the  said  infant,  Elizabeth,  is  contained  in  a 
letter  filed  with  the  report  marked  A,  and  dated  the  4th  April 
1843,  and  that  said  Tyson,  between  two  and  three  months  since, 
called  upon  one  of  the  trustees,  Robert  Mickle,  and  expressed 
bis  desire  that  the  property  should  be  sold  for  the  above  sum. 
That  the  trustees,  although  they  made  every  effort  to  dispose 
of  the  said  property,  could  not  obtain  an  offer  for  it  even  to 
the  amount  of  $10,000,  until  they  were  offered  that  sum  on 
the  4th  of  December  1843,  by  W.  P.  Jenks,  which  they  ac- 
cepted, and  sold  the  said  property  to  said  Jenks  for  the  sum  of 
$10,000  in  cash,  on  the  final  ratification  of  the  sale,  as  will 
appear  by  the  written  contract  of  sale  herewith  filed.  That 
said  sale  is  approved  of  and  desired  by  all  parties  interested, 
except  the  said  Tyson,  as  will  appear  by  their  prayer,  contained 
in  paper  B.;  that  since  said  sale  has  come  to  the  knowledge 
of  said  Tyson,  and  notwithstanding  his  previous  assent  that 
$10,000  should  be  taken  for  said  property,  he  objects  thereto, 
and  says  it  ought  to  have  brought  a  larger  sum,  and  has  re- 
quested the  trustees  to  report  his  objection  to  your  honor,  &c. 

Exhibit  A,  filed  with  report. 

"Montgomery  county,  4th  month  8,  1843,  R.  Mickle  and 
G.  L.  Dulany,  trustees. 


OF  MARYLAND.  379 

Tyson  vs.  Mickle,  et  aZ.— 1844. 

"R.  Mickle's  letter  of  the  3rd  inst.  reached  me  yesterday,  in- 
forming me  of  an  offer  you  have  had  of  $10,000  for  the  rolling 
mill  property  ; — certainly  a  great  sacrifice,  but  all  things  consid- 
ered, am  willing  to  let  it  go  for  that  price,  if  you  cannot  pos- 
sibly get  more ;  of  course  you  will  have  one  cash  payment, 
Respectfully  your  friend,         THOMAS  TYSON. 
In  case  the  purchaser  does  not  intend  it  for  an  iron  estab- 
lishment, perhaps  you  cian  reserve  the  old  iron  and  machinery, 

T.  T." 

Exhibit  B. — "I  hereby  offer  Grafton  L.  Dulany  and  Robert 
Mickle,  trustees  for  the  rolling  mill  property  at  Ellicotts  Mills, 
consisting  of  three  tracts  of  land,  say  about  94  acres  in  all, 
with  the  buildings  and  appurtenances  thereunto  belonging, 
$10,000  in  cash,  on  the  ratification  of  this  sale  by  the  Chan- 
cellor of  Maryland,  and  on  delivery  of  a  good  and  sufficient 
deed  of  conveyance  of  the  same  to  me  in  fee. 

December  4th,  1843.  W.  P.  JENKS. 

Executed  in  duplicate." 

"The  above  offer  we  hereby  accept,  subject  to  the  ratifica- 
tion of  the  Chancellor.  G.  L.  DULANY, 

R.  MICKLE." 

"The  undersigned  hereby  approve  of  the  above,  and  pray 
his  honor,  the  Chancellor,  to  confirm  the  sale  forthwith. 

R.  MicKLEj  trustee  of  Jona,  Ellicott  and  Sons, 
J.  M.  GORDON,  pres.  of  the  Union  Bank  of  Md., 
E.  T.  ELLICOTT,  &  Co., 
A.  and  J.  ELLICOTT,  &  Co., 
ELIAS  ELLICOTT." 

This  report  was  accompanied  with  usual  affidavit  of  the 
trustees,  and  was  confirmed  nisi,  the  19th  January  1844. 

After  proof  of  publication  of  this  order,  the  appellant,  on 
the  9th  February  1844,  filed  her  petition,  alleging  that  she  was 
the  owner  of  one  third  of  the  property  sold,  and  that  the  de- 
cree does  not  authorise  the  trustees  to  sell  said  property  at 
private  sale,  yet  the  said  trustees  have  undertaken  to  sell  the 
same  at  private  sale.  It  is  true,  that  the  said  Thomas  Tyson 
did,  in  April  or  March  1843,  sign  a  consent  that  the  said  pro- 


380  CASES  IN  THE  COURT  OF  APPEALS 

Tyson  vs.  Mickle,  et  aL— 1844. 

perty  should  be  sold,  at  that  time,  at  private  sale,  but  this  had 
reference  to  a  particular  and  special  purchaser  or  purchasers, 
confined  to  that  alone,  and  to  that  time,  not  intended  to  extend 
to  any  other  or  subsequent  offer,  and  certainly  did  not  extend 
to  the  offer  of  Wm.  P.  Jenks,  and  the  sale  to  him  now  sought 
to  be  ratified ;  in  accepting  the  said  first  mentioned  offer,  it 
was  expressly  understood  by  the  said  Thomas  Tyson,  that  the 
very  valuable  rolling  mill  machinery,  and  iron  belonging  to  the 
establishment,  worth  $1000,  should  be  reserved;  said  sale  was 
not  made,  and  there  was  an  end  to  the  consent  of  the  said 
Thomas,  if,  indeed,  he  had  any  right  to  consent.  Your  peti- 
tioner alleges,  in  confirmation  of  what  she  has  here  stated,  that 
afterwards,  to  wit,  in  the  month  of  June  or  July  1843,  an 
agreement  was  entered  into  between  the  said  Thomas  and 
others,  the  parties  interested  in  said  property,  that  the  same 
should  be  sold  at  private  sale,  but  said  sale  was  expressly 
limited  to  the  sum  of  $12,400,  and  no  other  agreement  to  sell 
at  private  sale  was  afterwards  made;  said  agreement  is  now 
in  possession  of  the  said  trustees,  or  one  of  them,  and  your 
petitioner  begs  leave  that  they  may  be  required  to  produce  it, 
and  in  case  they  do  not,  that  she  may  be  allowed  to  give 
parol  evidence  of  its  contents.  Your  petitioner  expressly  al- 
leges, that  her  consent,  or  that  of  her  guardian  and  next  friend, 
or  of  any  others,  having  a  right  to  act  for  her,  was  not  ob- 
tained to  the  said  sale  for  $10,000  to  the  said  Jenks.  Your 
petitioner  further  alleges,  that  by  the  will  of  her  grand-father 
filed  in  this  cause,  to  wit,  the  will  of  George  Ellicott,  no  sale 
is  allowed  to  be  valid  without  the  consent  of  Elizabeth  Ellirott, 
the  widow  of  said  George;  and  your  petitioner  avers,  that  al- 
though the  said  petitioner  has  consented  that  a  decree  should 
be  passed  for  the  sale  of  said  property,  yet  she  has,  in  no  case, 
and  in  no  wise,  consented  to  any  particular  sale.  Your  peti- 
tioner further  alleges,  that  the  sum  of  $10,000  for  the  said 
rolling  mill  property,  with  all  the  mill  machinery,  and  iron  be- 
longing thereto,  is  far  below  its  value,  and  would  be  a  great 
sacrifice  thereof,  and  that  much  more  could  have  been,  and  can 
now  be  obtained  for  the  same.  Your  petitioner  believes  that 


OF  MARYLAND.  381 


Tyson  r*.  Mickle,  et  al— 1844. 


$15,000  would  be  a  small  price  for  such  valuable  property : 
consisting  of  water  power  sufficient  for  any  operation,  mill  clam, 
rolling  mill,  a  large  number  of  valuable  tenements,  and  eighty 
or  ninety  acres  of  land,  in  and  near  the  thriving  village  of 
Ellicotts  Mills,  and  on  the  Patapsco  river.  Your  petitioner 
offers  the  above,  as  reasons  why  the  said  sale  should  not  be 
ratified,  and  prays  that  the  same  may  be  set  aside. 

On  the  9th  February  1844,  the  Chancellor  (BLAND,)  ordered, 
that  the  matter  of  the  foregoing  petition  stand  for  hearing  on 
the  19th  instant,  under  the  order  of  19th  December  last,  al- 
lowing cause  to  be  shewn  against  the  ratification  of  the  said  pro- 
posed sale.  On  the  19th  day  of  February  1844,  the  trustees 
filed  their  answer  to  the  said  petition,  and  alleged,  that  the 
assent  of  the  said  Thomas  Tyson  to  a  private  sale  of  said 
properly,  at  the  sum  of  $10,000,  was  given,  to  enable  and 
authorise  these  respondents  to  sell  the  same  to  any  person  dis- 
posed to  purchase  it  at  that  price,  and  was  not  confined  to  time 
or  persons  ;  nor  was  there  any  understanding  or  any  proposition 
to  reserve  the  rolling  mill  machinery,  or  iron  belonging  to  the 
establishment,  out  of  said  sale;  and  these  respondents  further 
state,  that  the  said  Thomas  Tyson,  subsequently  to  the  date  of 
said  letter,  and  always  afterwards,  when  he  conversed  with 
these  respondents  about  the  sale  of  said  property,  expressed 
his  willingness  to  take  $10,000  for  the  same,  and  lamented 
that  they  had  not  accepted  that  sum  when  it  had  been  formerly 
offered.  They  further  state,  that  some  time  in  June  1840, 
John  S.  Tyson,  the  brother  of  the  said  Thomas  Tyson,  and  his 
present  solicitor,  suggested  to  these  respondents,  as  they  could 
not  get  a  price  for  the  property  here,  that  an  advantageous 
sale  might  be  effected  in  some  of  the  eastern  cities,  and  offered 
to  make  the  effort  if  he  were  properly  compensated  therefor ; 
and  these  respondents  agreed  with  said  John  Tyson  to  allow 
him  a  handsome  and  graduated  commission  for  selling  the 
same,  which  was  subsequently  approved  of  by  the  said  Thomas 
Tyson,  representing  the  complainant  and  the  other  parties  in- 
terested therein;  which  agreement  they  have  ready  to  be  pro- 
duced to  this  court,  if  the  same  be  that  to  which  the  complain- 


382  CASES  IN  THE  COURT  OF  APPEALS 


Tyson  vs.  Mickle,  et  al.— 1844. 


ant  refers,  the  portion  of  said  agreement  which  is  cancelled 
and  partly  obliterated,  was  struck  out  by  these  respondents. 
These  respondents  were  greatly  surprised  to  find  any  opposi- 
tion made  to  said  sale  by  the  said  Thomas  Tyson,  especially 
for  the  reasons  assigned  in  said  petition.  They  believed,  and 
now  believe,  that  the  price  of  $10,000  was  as  good  as  could 
have  been  obtained  for  that  property  when  it  was  sold.  It  had 
been  in  the  market  at  that  price  for  some  months,  and  it  was 
generally  known,  as  these  respondents  believe,  that  it  would 
have  been  sold  for  that  sum ;  whether  or  not  more  could  be 
obtained  for  it,  since  it  was  agreed  to  be  sold,  these  respon- 
dents cannot  say,  but  they  believe  property,  generally,  has  ad- 
vanced since  then.  These  respondents  are  only  anxious  to 
discharge  their  official  duties  to  the  satisfaction  of  this  court, 
and  await  its  further  order  and  direction  in  the  premises. 

The  agreement  refered  to  in  the  within  answer,  was  as  fol- 
lows: 

"I  propose  to  undertake  the  sale,  of  the  rolling  mill  property, 
out  of  the  State  of  Maryland,  on  the  following  terms,  viz: 
If  they  should  be  sold  by  me  for  the  sum  of 

$20,000,  I  am  to  receive,  as  a  commis.,     -     -     $2,000 
From  20,000  to  19,000          "  «          -     -       1,800 

«     19,000  to  18,000          "  "          -     -       1,600 

"     18,000  to  17,000          "  "          -     -       1,400 

«     17,000  to  16,000          "  "          -     -       1,300 

"     16,000  to  15,000          "  "          -     -       1,000 

"     15,000  to  14,000          "  "  800 

"     14,000  to  13,000          "  "  600 

«<     13,000  to  12,000          "  «  400 

If  I  should  be  the  means  of  procuring  a  purchaser  in  the 
State  of  Maryland,  I  shall  expect  half-commission  at  the  above 
rates,  the  trustees  to  have  the  privilege  of  selling,  at  anytime, 
without  my  agency;  should  the  trustees,  without  my  agency, 
procure  a  purchaser  out  of  the  State,  I  shall  expect  my  ex- 
penses and  charges  to  be  defrayed,  to  an  amount  not  exceeding 
one  hundred  and  fifty  dollars.  This  agreement  to  last  sixty 
days  from  the  date  hereof. 

June  16th,  1843.  JOHN  S.  TYSON."      / 


4 

OF  MARYLAND.  383 

Tyson  vs.  Mickle,  et  a/.— 1844. 

u Baltimore,  16th  June  1843. — We  agree  to  the  within  terras. 

Andrew  Ellicott,  for  E.  T.  Ellicott  &  Co.,  and  A.  Sf  J.  Elli- 
cott  #  Co. 

J.  Jlf.  Gordon,  for  Union  .Ban&  o/  Md. 

R.  Mickle  trustee  of  Jona.  Ellicott  8f  Sons. 

Thomas  Tyson,  guardian." 

On  this  petition,  answer,  and  exhibit,  on  the  19th  February 
1844.  The  Chancellor  (BLAND,)  finally  ratified  the  sale,  and 
the  said  Elizabeth  Tyson  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSET, 
CHAMBERS  and  MAGRUDER,  J. 

By  GLENN  and  J.  JOHNSON  for  the  appellants,  and 
By  ALEXANDER  and  DULANY  for  the  appellees. 

DORSET,  J.,  delivered  the  opinion  of  this  court. 

The  trustees  report  shews,  that  "on  the  21st  of  June  1841, 
the  property  was  offered  at  sale,  pursuant  to  the  decree;  but 
being  unable  to  obtain  any  bid  for  it,  it  was  withdrawn  and 
offered  at  private  sale.  And  not  being  able  to  dispose  of  it 
in  this  way,  it  was  again  advertised  and  offered  for  sale,  as 
directed  by  the  decree,  on  the  12th  of  October  1842  ;  and  being 
unable  then  to  sell  it  at  the  price  agreed  on,  as  its  minimum 
value,  by  the  trustees  and  all  the  parties  interested,  the  trus- 
tees again  advertised  it  at  private  sale,  and  made  unusual  ex- 
ertions to  obtain  a  purchaser  on  favorable  terms,  without  suc- 
cess ;  when  it  was  thought  advisable  by  the  trustees  and  the 
parties  interested,  to  sell  the  said  property  for  ten  thousand 
dollars,  if  so  much  could  be  obtained  for  it."  "That  the  said 
trustees,  although  they  made  every  effort  to  dispose  of  said 
property,  could  not  obtain  an  offer  for  it,  even  of  the  amount 
of  ten  thousand  dollars,  until  they  were  offered  that  sum,  on 
the  4th  of  December  1843,  by  William  P.  Jenks." 

Had  the  trustees,  instead  of  accepting  the  offer  and  making 
the  sale,  as  they  did,  have  reported  the  aforegoing  facts  to  the 
Chancellor,  and  asked  his  permission  to  sell  the  property  on 
the  terms  proposed,  at  private,  instead  of  public  sale,  as  di- 


384  CASES  IN  THE  COURT  OF  APPEALS 

Tyson  vs.  Micklo,  et  al — 1844. 

rected  by  the  decree,  can  it  be  doubted  that  he  would  have 
granted  the  authority  they  solicited?  We  think  not.  If  then 
the  trustees  have  exercised  a  power,  which,  if  previously  ap- 
plied for,  would  have  been  granted,  as  it  were,  as  a  matter  of 
course,  a  court  of  equity  will,  in  the  absence  of  proof  shewing 
the  inexpediency  and  injustice  of  so  doing,  ratify  the  act  done, 
in  the  same  manner,  as  if,  the  requisite  authority  had  been  an- 
tecedently applied  for  and  granted. 

Were  there  sufficient  grounds  before  the  Chancellor  to  have 
warranted  his  refusal  to  ratify  the  sale  in  question,  is  then,  the 
enquiry  before  us?  No  testimony  has  been  taken  to  sustain 
the  allegations,  urged  for  that  purpose,  in  the  petition  seeking 
to  vacate  the  sale;  although  almost  all  of  them  that  are  mate- 
rial, have  been  denied  on  oath,  in  the  answers  of  the  trustees  ; 
which  answers  and  the  reports  of  the  sale,  made  by  the  offi- 
cers of  the  court,  (who  are  presumed  to  have  no  interest  in 
the  subject  matter,)  must  be  credited,  until  over-ruled  by  proof. 

The  assent  of  the  grand-mother  of  Elizabeth  Tyson,  to  the 
Chancellor's  decree,  is  a  sufficient  compliance  with  the  requi- 
sition of  the  will  of  her  grand-father,  George  Ellicott.  The 
assent  of  Thomas  Tyson,  the  father  and  next  friend  of  Eliza- 
beth Tyson,  to  the  sale  which  has  been  made  of  the  property, 
by  the  trustees,  we  think  fully  established  by  their  report  and 
answers. 

The  allegation  that,  at  the  time  of  the  sale  made,  a  much 
larger  sum  of  money  could  have  been  obtained  for  the  pro- 
perty, being  wholly  unsustained  by  proof,  and  explicitly  de- 
nied by  the  answers,  can  be  of  no  avail  to  the  appellant.  Nor 
can  it  redound  to  her  benefit,  that  the  property,  from  a  general 
enhancement  in  value,  since  the  sale,  would  now  sell  for  more 
money.  The  ratification  or  rejection  of  the  sale  must  depend 
on  the  state  of  circumstances  existing  at  its  date;  not  on  sub- 
sequent contingencies.  Suppose,  instead  of  appreciating,  the 
property  had  greatly  depreciated  since  the  sale,  who  would 
have  borne  the  loss?  The  purchaser,  unquestionably.  Upon 
the  plainest  principles  of  justice,  then,  he  must  reap  the  fruits 
of  its  appreciation. 


OF  MARYLAND.  385 


Rogers  and  Marfield  vs.  Severson. — 1844. 


The  order  of  the  Chancery  Court,  of  the  12th  of  February 
1844,  ratifying  and  confirming  the  sale,  made  and  reported  in 
this  case,  is  affirmed  with  costs. 

ORDER  AFFIRMED,  WITH  COSTS. 


CHARLES   ROGERS  AND  SAMUEL  MARFIELD,  vs.  THOMAS 
SEVERSON. — December  1844. 

In  an  action  to  recover  for  repairs  done  to  a  carriage  in  June  1837,  the  plain, 
tiff  offered  an  absolute  bill  of  sale  of  it,  from  M.  to  the  defendants,  dated 
July  1836.  The  defendants,  for  the  purpose  of  showing  that  the  bill  of 
sale  to  them  was  designed  to  be  a  mortgage,  or  a  conditional  sale,  and  to 
rebut  the  inference,  that  M.,  who  continued  to  be  the  driver  of  the  carriage, 
and  took  it  to  the  shop  of  the  plaintiff,  was  their  agent,  proposed  to  offer 
in  proof,  entries  in  their  Blotter,  Ledger,  and  account  books,  in  relation  to 
the  transactions  between  them  and  M, ;  HELD  inadmissible  to  modify  tho 
bill  of  sale,  and  insufficient  to  rebut  an  agency  in  1837. 

Various  circumstances  in  relation  to  the  possession  and  ownership  of  a  car- 
riage sent  to  a  mechanic  for  repairs  stated  and  considered,  making  a  case  for 
the  exclusive  consideration  of  the  jury,  whether  the  repairs  were  made  by 
the  authority  of  the  defendants. 

For  repairs  made  to  a  carriage  for  the  benefit  of  the  defendants,  and  with 
their  knowledge  and  approbation,  they  would  be  liable ;  but  whether  so  made, 
is  a  question  for  thejury. 

In  what  character  a  person  who  takes  a  carriage  to  a  mechanic  to  be  repaired, 
is  in  possession,  whether  as  driver,  servant,  agent,  or  owner,  is  a  fact  for  the 
jury. 

Where  repairs  done  to  a  carriage,  enured  to  the  benefit  of  a  third  person, 
who  in  fact,  took  it  to  be  repaired,  he  is  responsible ;  and  where  the  state  of 
tho  proof  enables  the  jury  to  regard  the  case  in  that  aspect,  it  is  error  to 
instruct  them  imperatively,  that  upon  finding  the  fact  of  property  in  the 
defendants,  and  repairs  made  with  their  knowledge  and  approbation,  that 
the  plaintiff  is  entitled  to  recover. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  assumpsit,  commenced  on  the  1st 
February  1838,  by  the  appellee  against  the  appellants,  who 
pleaded  non  assumpsit,  on  which  plea  issue  was  joined. 

IST  EXCEPTION.  At  the  trial  of  the  cause,  the  plaintiff 
offered  proof,  by  Lerew,  that  Mr.  Charles  Rogers  said,  he 
would  not  pay  for  any  work  done  for  him,  unless  he,  or  his 
49  v.2 


386  CASES  IN  THE  COURT  OF  APPEALS 


Rogers  and  Marfield  vs.  Severson. — 1844. 

partner,  sent  a  written  order,  or  came  himself;  the  witness 
said  he  never  saw  any  written  order  from  Mr.  R.,  or  Marfield, 
he  generally  saw  Mr.  R.  there,  mostly,  every  day,  which  might 
be  the  reason  he  saw  no  orders.  Witness  said  he  was  a  part- 
ner of  Mr.  Colvin  during  the  whole  time,  and  that  his  bills 
against  R.  and  M.  were  about  $800,  or  $900.  Witness  also 
proved,  that  T.  D.  Colvin  sold  to  R.  and  M.  a  darkish  color- 
ed carriage,  with  C  springs,  and  dark  blue  lining;  which  car- 
riage is  now,  or  was  lately  in  Bishop's  yard,  the  carriage  origi- 
nally built  by  Lee;  the  sale  might  have  been  three,  four,  or  five 
years  ago;  referring  to  a  memorandum,  made  in  deponent's 
presence,  from  the  book  of  Colvin,  he,  witness,  proves  the 
time  of  sale  in  April  1836;  after  the  sale,  the  carriage  was 
brought  by  John  Mitchell,  or  some  person  who  drove  for 
Mitchell,  to  Calvin's  shop  where  deponent  worked,  seven  or 
eight,  or  perhaps  a  dozen  times,  to  be  repaired,  and  deponent 
worked  on  it,  and  the  bills  for  the  repairs  were  paid  by  R.  and 
M. ;  deponent  knows  that  Mitchell  got  the  carriage  from  R. 
and  M.,  but  whether  he  bought  it  or  not,  deponent  does  not 
know;  Mitchell  never  told  him  he  was  the  owner  of  the 
carriage,  and  if  he  had  told  him,  witness  would  not  have 
believed  him:  all  the  repairs,  at  all  times,,  were  paid  by  R. 
and  M. ;  witness  would  not  have  trusted  Mitchell  for  the 
repairs;  has  examined  the  accompanying  bill,  and  the  charges 
for  the  work  are  reasonable  and  fair,  according  to  that  time, 
And  also  proved  by  a  witness,  named  Bishop,  that  he  was  a 
carriage  maker,  and  that  a  certain  John  Mitchell  brought  to 
his  shop  a  carriage,  to  be  repaired;  that  Mitchell  agreed  to 
pay  cash  for  the  repairs,  when  finished.  After  the  repairs 
were  completed,  witness  refused  to  let  the  carriage  go,  until 
the  repairs  were  paid  for;  Mitchell  then  requested  witness  to 
call  upon  the  defendants,  which  he  did.  They  agreed  to  pay 
him,  and  he  then  charged  the  repairs  to  the  defendants,  and 
suffered  Mitchell  to  take  away  the  carriage.  He  also  proved, 
that  the  defendants,  afterwards,  paid  for  the  repairs;  that  the 
contract,  for  the  repairs,  was  made  with  Mitchell;  that  if  he 
had  considered  the  defendants  responsible  for  them,  in  the 


OF  MARYLAND.  387 


Rogers  and  Marfield  vs.  Severson. — 1844. 


first  instance,  he  would  not  have  objected  to  Mitchell's  cat- 
tying  away  the  carriage.  Witness  does  not  know  what  ar- 
rangement there  was  between  Mitchell  and  the  defendants, 
which  induced  the  latter  to  assume  the  payment  of  the  said 
repairs.  That  said  repairs  were  not  entered  in  his  books, 
until  he  knew  who  was  to  pay  for  them.  He  also  proved, 
that  in  1838,  a  dark  colored  carnage,  with  blue  lining  and 
C  springs,  (the  carriage  might  have  been  called  black,)  was 
sent  to  the  shop  of  witness,  by  Marfield,  one  of  the  defen- 
dants, with  orders  to  have  it  repaired;  and  that  said  carriage 
still  remains  at  the  shop.  Witness  could  not  say,  that  it  was 
the  same  carriage  on  which  he  had  formerly  done  repairs.  The 
plaintiff,  further  to  support  the  issue  on  his  side,  proved  by 
Booth,  that  the  carriage,  now  at  the  shop  of  the  said  witness, 
Bishop,  is  the  same  carriage  upon'which  repairs  were  done,  by 
the  plaintiff,  and  for  the  amount  of  which,  this  suit  is  institu- 
ted to  recover.  Said  Booth  further  proved,  that  Rogers,  one  of 
the  defendants,  was  frequently  at  the  shop  of  the  plaintiff, 
while  the  said  carriage  was  undergoing  repairs,  and  that  he 
saw  it  there.  He,  witness,  however,  did  not  hear  Rogers  agree 
to  pay  for  the  repairs,  nor  does  he  know  to  whom  the  plaintiff 
originally  charged  the  same.  The  witness  further  proved,  that 
in  order  to  see  the  carriage,  Rogers  had  to  go  up  stairs  out  of 
his  way,  and  out  upon  the  open  platform,  where  the  carriage 
was.  The  plaintiff,  further  to  support  the  issue  on  his  side, 
offered  in  evidence  the  following  account:  "Rogers  and  Mar- 
field  to  Thomas  Severson,  Dr.  4th  June  1847."  The  items 
amounting  to  $199.07,  consisting  of  various  repairs  done 
to  a  carriage,  and  $43.75  for  interest;  and  proved,  that  the 
work  done  on  the  carriage,  was  as  is  in  said  bill,  and  that  the 
prices  therein  charged  for  the  same  .are  reasonable.  The  wit- 
ness further  stated,  that  he  does  not  know  that  the  defendants 
ever  undertook  to  pay  for  the  repairs;  that  he  had  heard  that 
the  carriage  had  been  brought  there  by  the  said  Mitchell.  The 
plaintiff  further  proved,  by  Col.  Moale,  that  in  a  conversation, 
which  had  taken  place  between  Col.  Moale  and  one  of  the 
defendants,  between  1835  and  December  1837,  who  stated,  he 


388  CASES  IN  THE  COURT  OF  APPEALS 

Rogers  and  Marfield  vs.  Sevorson. — 1844. 

thinks  that  they  had  a  carriage,  and  that  Mitchell  drove  for 
them. 

The  above  evidence  being  taken,  the  defendants  prayed  the 
court  to  instruct  the  jury  : 

1st.  That  if  they  believed  from  the  testimony,  that  Rogers, 
one  of  the  defendants  in  this  case,  stated  to  Colvin,  that 
he  would  not  be  responsible  for  any  work  done  upon  the 
carriages  taken  to  him,  by  Mitchell,  for  repair,  unless  upon 
his,  the  said  Rogers,  own  order,  written  or  verbal;  and 
if  in  the  instances  where  the  defendants  had  actually  paid  for 
such  repairs,  they  had  been  made  by  the  said  Colvin,  at  the 
request  of  the  defendants,  or  either  of  them;  the  facts  stated 
in  the  said  deposition  of  Lerew,  are  wholly  incompetent  to 
prove,  that  any  authority  was  given  by  the  defendants  to  the 
said  Mitchell,  to  make  a  contract  for  them  with  the  plaintiff, 
for  the  repairs  for  which  this  suit  is  brought:  and  that  the  said 
deposition  cannot  be  considered  by  the  jury  for  such  a  purpose. 

2nd.  That  the  facts,  stated  in  the  evidence  of  Bishop,  are 
also  wholly  incompetent  to  prove,  that  said  Mitchell  was  au- 
thorised by  the  defendant,  as  their  agent,  to  contract  for  them 
with  the  plaintiff,  for  the  said  repairs. 

3rd.  That  the  deposition  of  Lerew,  and  the  evidence  of 
Bishop,  are  altogether  incompetent  to  establish  a  contract  for 
the  repairs  done  upon  the  carriage  by  the  plaintiff,  in  this  case, 
between  him  and  the  defendants;  and  that,  unless  the  jury  be- 
lieve that  a  contract  did  exist,  upon  the  part  of  the  plaintiff, 
to  do  the  repairs  staled  in  the  proof,  and  on  the  part  of  defen- 
dants, to  pay  him  for  them,  then  the  plaintiff  is  not  entitled  to 
recover. 

4th.  That  there  is  no  evidence,  in  this  cause,  from  which  the 
jury  can  infer,  that  the  said  Mitchell  did,  in  fact,  contract  with 
the  said  Colvin,  in  the  character  of  agent  for  the  defendants. 

All  which  said  several  prayers,  the  court,  (MAGEUDER  and 
PURVIANCE,  A.  J.,)  refused,  because  the  court  considered  the 
whole  case,  so  far  as  concerns  the  proposition  of  law,  submit- 
ted to  them  on  both  sides,  as  covered  by  the  prayers  made  by 
the  plaintiffs,  and  granted  by  the  court. 


OF  MARYLAND.  389 


Rogers  and  Marfield  vs.  Scverson. — 1844. 


The  defendants  excepted  to  the  refusal  of  the  court,  to  grant 
their  prayers,  and  to  the  granting  of  the  plaintiff's  prayers,  but 
this  exception  was  abandoned  by  the  appellants  in  this  court. 

SND  EXCEPTION.  The  defendants,  to  support  the  issue  on 
their  side,  offered  in  evidence,  by  a  witness,  named  Blasdel, 
that  said  Mitchell  had  left  the  State  of  Maryland,  about  three 
months  ago,  before  the  present  term  of  Baltimore  county  court, 
and  had  gone,  he  did  not  know  where;  but  that  he  believed 
that  he  had  enlisted,  and  was  somewhere  in  Florida;  and  also, 
the  docket  entries  of  the  subpcena  docket,  to  shew  that  a  sub- 
pcena had  been  issued,  upon  the  part  of  the  plaintiff,  against 
the  said  Mitchell,  as  a  witness  in  this  case,  to  the  present  term 
of  Baltimore  county  court,  and  that  the  same  had  been  return- 
ed "non  est;"  the  said  docket  entries  showing,  that  he  had 
been  returned,  summoned,  for  three  terms,  prior  to  the  present, 
on  behalf  of  the  plaintiff,  and  that  he  had  never  been  sum- 
moned by  the  defendant.  The  defendants  further  offered  to 
prove,  by  the  said  Blasdel,  that  said  Mitchell  was  in  posses- 
sion of  the  carriage,  on  which  said  repairs,  proved  to  have 
been  done  by  the  plaintiff,  were  placed;  and  that  in  a  conver- 
sation with  said  Mitchell,  he  had  claimed  the  said  carriage  as 
his,  under  a  contract  with  the  defendants;  that  they  would 
pass  their  title  in  it  to  him,  when  he  should  pay  the  money  he 
had  agreed  to  give  them  for  it. 

To  the  admission  of  which  said  declaration  and  statement 
of  the  said  Mitchell,  as  competent  evidence,  the  counsel  for 
the  plaintiff  objected,  and  the  court,  (MAGRUDER  and  PURVI- 
ANCE,  A.  J.,)  sustained  the  objection,  and  rejected  the  evi- 
dence. The  defendants  excepted. 

SRD  EXCEPTION.  The  defendants  further  to  support  the  is- 
sue on  their  side,  offered  to  give  in  evidence  the  following 
entries  in  the  Blotter  of  the  defendants,  and  offered  to  prove, 
that  the  same  were  made  on  the  8th  April  1836,  as  they  pur- 
port to  be  made  in  said  book. 

These  entries  were  headed. 

"  John  Mitchell  to  Rogers  and  Marfield,  Dr.  Baltimore,  8th 
April  1836.  To  bill  of  sale,  and  recording  carriage,  6.50,  per 


390  CASES  IN  THE  COURT  OF  APPEALS 

Rogers  and  Marfield  vs.  Severson. — 1844. 

horses,  1.50."  And  also  offered  to  give  in  evidence,  the  entries 
in  the  Ledger  of  the  defendant;  and  offered  to  prove,  that  they 
were  made  therein,  at  the  respective  dates  on  which  they  pur- 
port to  have  been  made. 

"John  Mitchell  in  account  with  Rogers  and  Marfield."  This 
account  consisted  of  various  debits  and  credits,  from  1st  Sep- 
tember 1835,  to  28th  April  1837,  and  included  carriages  and 
harness,  whips,  hay,  oats,  horses,  &c.,  and  cash. 

The  above  evidence  was  offered  to  prove,  that  the  bill  of  sale, 
given  in  proof  by  the  plaintiff,  was  designed  as  a  mortgage  be- 
tween the  parties  to  it,  or  as  a  conditional  sale  of  the  carriage 
therein  named,  being  made  by  the  defendants  to  the  said 
Mitchell;  and  also  to  rebut  the  evidence  offered  by  the  plain- 
tiff, that  the  said  Mitchell  acted  as  the  servant  or  agent  of  the 
defendants,  and  to  shew  the  true  relationship  which  existed 
between  the  defendants  and  the  said  Mitchell.  The  above 
evidence  was  also  offered  as  evidence,  in  connection  with  the 
testimony  of  Blasdel,  which  said  evidence  had  been  previ- 
ously rejected  by  the  court,  for  the  purpose  of  establishing 
each  of  the  facts  above  stated,  if  the  court  should  be  of  opin- 
ion, that  the  same  is  not  evidence  for  all  the  purposes  above 
stated.  To  all  of  which  evidence,  the  counsel  for  the  plaintiff 
objected,  and  his  objection  was  sustained  by  the  court.  The 
defendants  excepted. 

4TH  EXCEPTION.  The  plaintiff,  by  his  counsel,  then  prayed 
the  court  to  instruct  the  jury  as  follows: 

1.  If  the  jury  shall  believe,  that  the  carriage  on  which  the 
repairs  were  made,  was  at  the  time  of  such  repairs,  the  pro- 
perty of  the  defendants,  and  that  the  repairs  while  going  on, 
were  seen  by,  and  approved   by  the  defendants,  or  either  ot 
them,  that  then  the  plaintiff  is  entitled  to  recover  such  sum, 
as  the  jury  may  believe  from  the  testimony,  to  be  a  just  and 
reasonable  compensation  for  the  work  and  labor  done. 

2.  If  the  jury  shall  believe  from  the  testimony,  that  Mitchell 
was  the  driver  of  the  defendants,  at  the  time  the  repairs  were 
made,  and  that  he  took  the  carriage  to  the  shop  of  the  plaintiff, 
to  be  repaired,  and  that  while  the  repairs  were  being  made, 


OF  MARYLAND.  391 


Rogers  and  Marfield  vs.  Severson. — 1844. 


they  were  shewn  to,  and  approved  of  by  the  defendants,  or 
either  of  them,  that  then  the  plaintiff  is  entitled  to  recover 
such  sum,  as  the  jury  shall  believe  from  the  testimony,  to  be 
a  just  and  reasonable  compensation  for  the  work  and  labor 
done,  which  instructions  the  court  gave.  The  defendants  ex- 
cepted. 

It  was  agreed  in  this  court,  that  an  absolute  bill  of  sale  of 
a  carriage  was  offered  in  evidence  in  the  court  below,  from 
John  Mitchell  to  the  defendants,  dated  8th  July  1836;  that 
the  account,  in  the  Blotter  of  the  plaintiff,  (ante  387,)  was 
first  headed,  "John  Mitchell  to  Thomas  Severson,  Dr.,"  and 
that  the  name  of  "John  Mitchell"  was  cancelled,  and  the  name 
of  "Rogers  fy  Marfield"  written  above  it,  and  that  these  facts 
be  added  to  the  record. 

The  verdict  and  judgment  being  for  the  plaintiff,  the  defen- 
dants prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  MAGRUDER,  J. 

By  G.  L.  DULANY  for  the  appellants,  and 
By  LATROBE  for  the  appellee. 

ARCHER,  C.  J.,  delivered  the  opinion  of  this  court. 

From  the  evidence  in  the  cause,  we  should  infer,  that  the 
carriage,  for  the  repairs  of  which  this  suit  has  been  brought, 
was  taken  by  Mitchell  to  the  shop  of  the  plaintiff  for  repair ; 
the  account  for  repairs,  having  been  originally  charged  to 
Mitchell,  by  the  plaintiff.  There  is  evidence  to  show,  that  the 
property  of  the  carriage  was  in  the  defendants,  but  the  evi- 
dence does  not  conclusively  show,  under  what  circumstances 
Mitchell  came  into  possession  thereof.  He  is  proved,  at  one 
period  of  time,  to  have  been  the  driver  of  a  carriage  for  the 
defendants,  but  whether  at  the  particular  period  of  the  repairs, 
is  uncertain.  It  is  also  in  evidence,  that  Mitchell  had  repairs 
of  the  same  carriage  done  at  several  times,  and  that  defendants 
paid  for  them,  and  that  Mitchell  had  contracted  with  Bishop 
for  the  repair  of  a  carriage,  but  whether  of  the  one  in  question, 


392  CASES  IN  THE  COURT  OF  APPEALS 

Rogers  and  Marfield  vs,  Severson. — 1844. 

is  not  known.  It  is  also  in  proof,  that  the  defendants  saw  the 
carriage  while  the  repairs  were  being  made,  at  several  times  ; 
and  it  is  further  proved,  that  they  were  in  possession  of  the 
carriage  in  the  year  1838,  having  brought  it  to  the  shop  of 
Bishop  to  repair,  some  time  during  that  year;  how  long  after 
the  repairs  charged  in  the  account  filed  in  this  case,  does  not 
appear. 

Under  all  the  evidence  in  the  case,  we  think  it  was  for  the 
jury  to  determine,  whether  the  repairs  were  made  by  authority 
of  the  defendants.  If  indeed,  they  were  made  for  the  benefit 
of  the  defendants,  and  with  their  knowledge  and  approbation, 
they  would  be  clearly  liable,  but  whether  they  were  so  made, 
was  surely  a  question  which  could  be  determined  by  the  jury 
alone.  The  repairs  may  have  enured  to  the  benefit  of  Mitchell, 
unless,  in  regard  to  the  carriage,  he  was  in  the  condition  of  an 
agent  or  servant  of  the  defendants.  In  what  manner  he  was 
in  possession  of  the  carriage,  whether  as  driver,  servant,  or 
agent  of  the  defendants,  or  otherwise,  was  a  fact  to  be  found 
by  the  jury. 

We  therefore  think,  that  the  court  below  were  in  error  in 
their  first  instruction  to  the  jury  in  the  fourth  exception,  which 
imperatively  declared  the  right  of  the  plaintiff  to  recover,  upon 
the  finding  of  the  fact  of  property  in  the  defendants,  and  that 
the  repairs  were  made  with  their  knowledge  and  approbation. 

But,  we  think  the  court  were  right  in  their  second  instruc- 
tion to  the  jury  in  the  same  exception  :  if  the  jury  found,  in 
addition  to  the  facts  referred  to  in  the  first  prayer,  the  addi- 
tional fact,  that  Mitchell  was  the  driver  of  the  defendants, 
when  he  took  the  carriage  for  repair,  they  would  be  clearly 
liable  for  such  repairs.  Mitchell,  in  this  aspect  of  the  case, 
might  and  ought,  in  the  absence  of  evidence  to  the  contrary, 
to  be  considered  as  the  servant  of  the  defendants,  and  if  such 
servant  took  his  carriage  to  repair,  and  repairs  were  made,  and 
known  and  approved  by  the  defendants,  the  verdict,  in  that 
event,  should  have  been  for  the  plaintiff. 

We  think  the  court  were  right  in  rejecting  the  account  of 
the  defendants  in  the  third  exception,  against  John  Mitchell, 


OF  MARYLAND.  393 

Henderson  vs.  Mayhew,  el  al. — 1844. 

as  evidence  for  the  purposes  for  which  it  was  offered.  If  it 
could  be  admissible  to  prove,  that  the  bill  of  sale  was  in  fact 
a  mortgage,  and  the  character  of  the  evidence  was  such  as 
could  be  received,  we  perceive  nothing  in  the  account  which 
is  sufficient  to  prove  such  fact.  The  other  purposes  for  which 
it  was  offered,  were  not  insisted  upon  in  the  argument,  nor  if 
they  had  been,  do  we  think  it  could  have  been  received. 

The  first  exception,  we  considered  as  having  been  aban- 
doned by  the  appellants. 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 


JOHN  HENDERSON  AND  GTJSTAVUS  HENDERSON  vs.  WILLIAM 
E.  MAYHEW  AND  OTHERS.  WILLIAM  E.  MAYHEW  AND 
OTHERS  vs.  JOHN  AND  GUSTAVUS  HENDERSON. — Decem- 
ber 1844. 

On  the  6th  October  1841,  B.  executed  an  absolute  bill  of  sale  to  M.,  for  a 
vessel,  on  which,  on  the  8th,  he  took  out  a  register  in  his  own  name,  and 
made  the  usual  oath  required  by  the  act  of  Congress.  On  the  15th  Novem- 
ber 1841,  B.,  who  continued  in  possession,  chartered  the  vessel  for  a 
foreign  voyage,  to  H.,  who  appointed  C,  master,  and  he,  in  November,  and 
to  the  15th  December,  purchased  materials  for  her  outfit,  by  B's  directions. 
On  the  20th,  the  account  for  materials  was  delivered  fo  B.  On  the  19th 
January  1842,  the  charter  party,  made  by  B.,  was  assigned  and  delivered  by 
him  to  M.,  who  then  effected  insurance  on  the  vessel  and  freight,  after 
an  enquiry  of  B.,  of  the  nature  and  particulars  of  the  voyage.  Upon  the 
return  of  the  vessel,  in  August  1842,  M.  received  the  freight,  paid  the  port 
charges,  for  the  first  time  took  possession  of  her ;  in  November  sold  her, 
and  received  the  money ;  never  having  before  had  any  possession  and  con. 
trol  of  the  vessel.  In  an  action  brought  by  the  material  man  against  M., 
for  the  supplies  furnished  as  aforesaid,  HELD: 

1st.  That  the  plaintiffs  were  not  entitled  to  recover,  upon  the  mere  finding 
of  the  fact  by  the  jury,  that  M.  was  the  owner  of  the  vessel,  at  the  time 
the  articles  furnished  her,  were  sold  and  delivered.  Nor  in  addition  to  the 
fact  of  ownership,  as  aforesaid,  the  circumstances,  that  the  supplies  were 
furnished,  and  that  JVf.  received  the  benefit  of  them. 

2nd.  That  it  was  not  competent  for  JVf.  to  show,  by  parol  proof,  that  his 
bill  of  sale  was  intended  to  be  a  mortgage ;  that  it  was  so  designed  and 
agreed,  between  him  and  B. 

50     v.2 


394  CASES  IN  THE  COURT  OF  APPEALS 

Henderson  vs.  Mayhew,  et  al. — 1844. 

3rd.  It  was  not  competent,  to  either  plaintiff  or  defendant,  under  the  circum- 
stances of  this  case,  by  any  form  of  prayer,  to  withdraw  the  question  of  B'« 
agency  for  M .,  in  procuring  materials  for  the  ship,  from  the  consideration 
of  the  jury. 

Where  there  was  evidence  offered,  that  Af.  was  the  owner  of  a  vessel  at 
the  time  she  was  furnished  with  supplies,  but  the  account  against  her  and 
her  owner,  was  sent  to  B  ,  her  previous  owner,  for  payment,  this  cannot 
discharge  M.,  if,  but  for  this  proof,  he  would  have  been  answerable. 

Unless  the  vendor  knows,  at  the  time  of  sale  of  chattels,  who  his  principal 
is,  and  notwithstanding  such  knowledge,  makes  the  agent  his  debtor,  the 
principal  is  not  discharged. 

The  jury  are  exclusive  judges  of  the  weight  of  parol  evidence  offered  to  them, 
tending  to  prove  an  agency. 

Oral  proof  is  inadmissible,  to  change  or  contradict  the  terms  of  a  written 
instrument. 

Strangers  to  an  instrument,  when  authorised  to  impeach  or  contradict  it, 
may  offer  parol  testimony  for  that  purpose ;  and  so  a  grantor  may  in  a  con- 
troversy with  a  grantee,  if  he  charges  the  same  to  have  been  obtained  by 
fraud  or  mistake 

Parties  to  a  written  instrument  are  not  permitted,  in  controversies  with 
strangers,  to  insist,  that  it  does  not  express  what  it  was  intended  to 
express. 

Where  a  defendant  obtained  an  absolute  bill  of  sale  for  a  vessel,  authorizing 
the  community  to  regard  him  as  the  owner  thereof,  he  cannot  for  his  bene- 
fit, be  permitted  to  allege  in  an  action  against  him,  by  a  stranger  to  the  in- 
strument, that  it  is  a  mortgage. 

CROSS  APPEALS  from  Baltimore  County  Court. 

This  was  an  action  of  assumpsit,  brought  to  May  term  of 
Baltimore  county  court  1842,  by  J.  and  G.  Henderson  against 
William  E.  Mayhew  and  others.  The  plaintiffs  declared  for 
goods  sold  and  delivered,  &c.,  and  the  defendants  pleaded 
non  assumpsit. 

The  jury  found  a  verdict  for  the  defendants. 

Upon  the  trial  of  this  cause,  the  plaintiffs,  to  support  the 
issue  upon  their  part,  offered  in  evidence  by  Samuel  Ellis,  that 
he  was  a  clerk  for  the  plaintiffs,  during  the  whole  of  the  year 
1841,  and  for  several  years  before  that  time;  and  that  he  is 
now  their  clerk.  That  in  the  months  of  November  and  De- 
cember 1841,  a  certain  William  Champion,  who  was  then  the 
master  of  the  brig  Harriet,  of  Baltimore,  ordered  from  the 
plaintiffs,  certain  materials  and  supplies  for  said  brig,  for  a 


OF  MARYLAND.  395 


Henderson  va.  Mayhew,  et  ol. — 1844. 


voyage  to  the  coast  of  Africa;  that  said  materials  and  sup- 
plies were  furnished  to  said  brig,  upon  said  order,  and  were 
charged  in  the  books  of  the  plaintiffs,  to  the  "brig  Harriet  and 
owners."  That  a  bill  of  parcels  of  said  materials  and  sup- 
plies, was  shortly  afterwards  made  out  from  the  books  of  the 
plaintiffs,  and  presented  to  the  said  captain,  who  certified  to 
the  correctness  of  said  bill;  and  that  the  bill  now  shewn  to 
the  said  witness,  is  the  original  bill  of  parcels,  of  said  articles, 
as  certified  by  the  said  captain  to  be  correct. 

" Baltimore,  December  20th,  1841.  The  brig  Harriet  8f 
Owners,  bought  of  John  Henderson  fy  Co.,  ship  chandlers  and 
manufacturers  of  patent  cordage,  No.  71,  Pratt  street: 

1841. 

Nov.  23,  87£  Ibs.  Russia  rope,  a  12J  cents,  -  $10  93 
"  29,  522^  Ibs.  do.  do.  a  12|  «  -  65  37 
Dec.  6,  Coils  Manilla  rope,  407  Ibs.  a  14  "  -  5698 
<l  "  58  Ibs.  Russia  rope,  a  12£  "  -  7  25 
"  15,  250|  Ibs.  do.  do.  a  12£  «  -  31  31 
"  "  557|  Ibs.  Manilla  do.  a  14  «  -  78  05 
"  *«  10  Ibs.  Tar'd  Marline,  a  20  "  -  200 
"  "  12  Ibs.  Sewing  twine,  a  50  "  -  600 
"  "  2  Ibs.  Whipping  twine,  $1.  1  doz. 

Needles,  50  cts.  2  Palms,  75,     -       2  25 


(6  Months.}  $260  14 

W.  CHAMPION" 

That  shortly  after  said  bill  of  parcels  had  been  certified  as 
correct,  by  the  said  captain  of  said  brig,  it  was  presented  and 
delivered  by  the  witness,  as  clerk  of  the  plaintiffs,  at  the 
counting-room  of  Hugh  Boyle,  for  payment,  when  it  should  be- 
come due,  or  before,  at  the  option  of  said  Boyle;  that  the  ma- 
terials were  furnished  on  a  credit  of  six  months;  but  that  it  was 
customary  to  deliver  bills  for  supplies,  soon  after  they  are  fur- 
nished for  a  vessel,  in  order  that  the  owners  may  be  able 
to  enter  them  in  the  account  of  the  expenses  of  the  vessel; 
but  that  sometime  afterwards,  how  long,  the  witness  does  not 
recollect,  having  heard  from  some  person,  he  thinks  one  of  the 


396  CASES  IN  THE  COURT  OF  APPEALS 

Henderson  vs.  Mayhew,  et  al. — 1844. 

plaintiffs,  that  Mr,  B.  was  not  the  person  to  pay,  he,  (the 
witness,)  went  to  the  counting-room  of  Mr.  B.,  for  the  pur- 
pose of  getting  the  bill;  Mr.  B. Was  in,  and  he  asked  him 
for  the  bill,  and  B.  took  it  out  of  a  bundle,  and  gave  it  to 
witness;  that  no  further  conversation  was  had  with  B.  on  the 
subject.  The  plaintiffs,  further  to  support  the  issues  on  their 
part,  gave  in  evidence  a  bill  of  sale,  executed  by  Hugh  Boyle 
to  the  defendants,  on  the  6th  October  1841,  for  the  said  brig 
Harriet;  which  said  bill  of  sale  was  admitted  by  the  defen- 
dants, to  have  been  signed  and  sealed,  and  delivered  by  the 
said  B.  to  the  defendants,  on  the  said  6th  October  1841;  and 
which  said  bill  of  sale  is  as  follows: 

"Know  all  men  by  these  presents,  that  I,  Hugh  Boyle,  of 
Baltimore,  State  of  Maryland,  sole  owner  of  the  brig  or  vessel, 
called  the  Harriet,  of  Baltimore,  for,  &c.:  of  $6000,  to  me  in 
hand  paid,  at,  &c.,  by  William  E.  Mayhew,  Alexander  Fisher 
and  Wm.  D.  Milter,  the  receipt  whereof  is  hereby  acknow- 
ledged, have  granted,  &c.,  and  by  these  presents  do  grant, 
&c.,  unto  the  said  W.  E.  M.,  A.  F.,  and  W.  D.  M.,  their,  &c., 
the  whole  of  said  brig  Harriet,  of  Baltimore,  together  with  all 
and  singular,  her  masts,  &c.  She  now  lies  in  the  port  of  Bal- 
more,  and  is  more  particularly  described  in  a  certificate  of  reg- 
istry, granted  her  at  the  port  of  Baltimore,  in  the  following 
words,  &c." 

And  further  gave  in  evidence  by  Ring,  a  competent  witness, 
that  he  was  a  clerk  in  the  custom  house  at  Baltimore,  in  the 
year  1841;  and  that  on  the  8th  October  in  said  year,  the  de- 
fendants appeared  in  said  custom  house,  and  in  pursuance  of 
the  revenue  laws  of  the  United  States,  took  out  the  following 
register  for  the  said  brig,  and  made  the  oath  therein  contained. 

"In  pursuance  of  an  act  of  the  Congress  of  the  United 
States  of  America,  entitled,  an  act  concerning  the  registering 
and  recording  of  ships  or  vessels,  William  E.  Mayhew,  Alex- 
ander Fisher  and  William  D.  Miller,  of  Baltimore,  State  of 
Maryland,  having  taken  or  subscribed  the  oath  required  by  the 
said  act;  and  having  sworn  that  they  are  the  only  owners  of 
the  ship  or  vessel,  called  the  Harriet,  of  Baltimore,  whereof 


OF  MARYLAND.  397 


Henderson  vs.  Mayhew,  et  al. — 1844. 


Alexander  Fisher  is  at  present  master,  and  a  citizen  of  the 
United  States,  as  be  hath  sworn:  and  that  the  said  ship  or 
vessel  was  built  in  Baltimore,  &c." 

"We,  W.  E.  M.,  A.  F.,  and  W.  D.  M.,  of  &c.,  do  swear, 
according  to  the  best  of  our  knowledge  and  belief,  that  the 
brig  called  the  Harriet  of  Baltimore,  is  of  the  burthen  of  two 
hundred  and  twenty-five  and  f£  parts  of  a  ton,  and  was  built 
in  Baltimore,  in  the  State  of  Maryland,  during  the  year  1822; 
that  we  are  citizens  of  the  United  States;  that  our  present 
place  of  abode  or  residence,  is  as  above,  and  that  we  are  the 
true  and  only  owners  of  the  said  vessel ;  that  there  is  no  sub- 
ject nor  citizen  of  a  foreign  prince  or  State,  directly  or  indi- 
rectly, by  way  of  trust,  confidence,  or  otherwise,  interested 
therein,  or  in  the  profits  or  issues  thereof,  so  help  us  (rod. 
(Signed,)  WM.  E.  MAYHEW, 

ALEX'R  FISHER, 
WM.  D.  MILLER." 

"Port  of  Baltimore. — Sworn  to  this  8th  day  of  October  1841, 
before  (Signed,)  N.  F.  WILLIAMS,  Collector." 

"I,  Alexander  Fisher,  master  and  commander  of  the  said  brig 
called  the  Harriet,  of  Baltimore,  do  swear,  that  I  am  a  citizen 
of  the  United  States,  having  been  born  in  Baltimore,  State  of 
Maryland.  (Signed,)  ALEX'R  FISHER. 

Custom  House,  Baltimore,  28th  February  1841." 

And  that  A.  Fisher  was  named  and  sworn  by  said  defen- 
dants to  be  the  master  of  said  brig  in  said  register,  at  the  time 
of  taking  out  the  same;  which  said  A.  Fisher,  the  defendants 
admitted,  was,  at  that  time,  one  of  the  defendants  mentioned 
as  a  grantee  in  said  bill  of  sale. 

The  plaintiffs,  further  proved  by  the  said  Ring,  that  he  has 
been  for  several  years  a  clerk  in  the  custom  house;  and  that 
persons  were  permitted  at  the  custom  house,  to  endorse  upon 
the  register  of  a  vessel,  a  memorandum  of  a  mortgage,  when 
they  desired  it;  and  that  such  memoranda  were  sometimes 
made. 

The  plaintiffs,  further  to  support  the  issue  upon  their  part, 
offered  in  evidence  by  W.  L.  Brockelman,  that  during  the  year 


398  CASES  IN  THE  COURT  OF  APPEALS 


Henderson  vs.  May  hew,  et  al. — 1844. 


1842,  he  was  a  clerk  in  the  office  of  the  Neptune  Insurance 
Company,  of  Baltimore;  and  that  on  the  19th  January  1842, 
the  defendants  applied  for  insurance  upon  the  brig  Harriet 
and  her  freight,  for  a  voyage  to  the  coast  of  Africa  and  back; 
that  the  said  offer  for  insurance,  and  the  acceptance  now  shewn 
to  the  witness,  is  the  said  original  application,  signed  in  the 
proper  hand  writing  of  the  defendants. 

"Balto.,  Jan'y  19  1842.  Insurance  is  wanted  by  Wm.  E. 
Mayhew  Sf  Co.,  for  account  of  whom  it  may  concern:  amount 
of  loss,  if  any,  to  be  paid  to  them,  to  the  amount  of  $4000, 
on  the  brig  Harriet,  Captain  Champion,  valued  thereat ;  from 
Baltimore,  on  a  trading  voyage,  to  the  American  colonies  on 
the  coast  of  Africa,  and  their  vicinity,  and  back,  to  a  port  in 
the  United  States.  They  understand  this  to  be  the  third  voy- 
age of  Ca.pt.  Champion  on  that  coast,  and  an  acclimated  super- 
cargo went  out  in  the  vessel.  They  also  want  insurance  on 
freight,  to  be  valued  at  $2500,  and  considered  as  earned  at  all 
periods  of  the  voyage.  What  is  the  required  premium?  The 
Harriet  is  reported  by  Capt.  Clackner  in  November,  and 
cleared  at  this  port  in  December  last." 

"Nine  p.  ct.     Accepted,         WM.  E.  MAYHEW  &  Co." 

And  that  in  pusuance  of  said  offer  and  acceptance,  he  made 
out  and  delivered  to  the  defendants,  a  policy  of  insurance  up- 
on said  brig  and  freight. 

The  plaintiffs,  further  to  support  the  issue  upon  their  part, 
offered  in  evidence,  by  competent  witnesses,  that  upon  the  re- 
turn of  the  said  brig  from  the  coast  of  Jjfrica,  upon  said  voy- 
age, the  defendants  received  the  freight  for  said  voyage,  and 
paid  the  port  charges  of  said  brig  in  the  port  of  Baltimore; 
and  that  on  the  2nd  November  1842,  the  defendants  sold  said 
britf  to  Greenbury  B.  Wilson,  and  conveyed  the  same  to  him 
by  bill  of  sale,  which  was  signed,  sealed  and  delivered,  by  the 
said  defendants  to  the  said  Wilson,  on  the  day  of  its  date,  to 
have  and  to  hold  the  said  brig  absolutely. 

And  that  the  defendants  received  the  consideration  money, 
mentioned  in  said  last  mentioned  bill  of  sale. 


OF  MARYLAND.  399 

Henderson  vs.  Mayhew,  et  al. — 1844. 

The  defendants,  to  support  the  issue  upon  their  part,  and 
for  the  purpose  of  shewing  that  the  defendants  were  not  the 
absolute  owners  of  the  brig  Harriet,  but  only  mortgagees, 
gave  in  evidence  by  Samuel  Ellis,  the  witness  sworn  on  be- 
half of  the  plaintiffs,  upon  cross  examination  of  said  witness, 
that  the  said  Hugh  Boyle  never  told  him,  (the  witness,)  that 
he,  (Boyle,)  was  the  person  to  pay  the  said  bill.  That  the 
reason  why  he  presented  the  bill  to  the  said  Boyle,  was,  be- 
cause he  considered  said  Boyle  was  the  owner  of  said  brig. 
That  the  plaintiffs  had,  for  some  time  previously,  furnished 
supplies  for  vessels  belonging  to  said  Boyle;  and  he  believes 
they  had  furnished  some,  once  before,  for  the  said  brig  Harriet, 
and  were  paid  for  them  by  Boyle.  The  defendants,  then,  for 
the  said  purposes,  gave  in  evidence  by  James  Hall,  a  compe- 
tent witness,  who  being  duly  sworn,  testified,  that  he  and  the 
said  Hugh  Boyle,  on  the  15th  November  1841,  executed  the 
charter  party  for  the  brig  Harriet,  now  shewn  to  the  witness, 
which  is  in  the  words  following,  &c.  This  was  for  a  voyage 
from  Baltimore  to  the  coast  of  Africa,  and  back,  and  describ- 
ed Hugh  Boyle  as  owner.  That  under  a  contract  with  said 
B.,  for  said  charter  party,  he  took  possession  of  said  brig, 
some  days  before  the  date  of  said  charter  party,  as  the  freighter 
of  said  vessel,  and  to  hold  the  possession  and  control  of  said 
brig,  upon  the  contract  and  terms  of  said  charter  party,  thence- 
forth, until  sometime  in  August  or  September  1842,  the  time 
when  the  voyage,  described  in  said  charter  party  was  termi- 
nated, on  the  arrival  of  said  brig  from  the  coast  of  Africa  to 
the  port  of  Baltimore.  That  he,  the  said  James  Hall,  as  the 
freighter  of  said  vessel,  appointed  William  Champion  her  mas- 
ter, about  the  date  of  said  charter  party.  That  the  defendants 
never  had  any  possession  of  said  vessel,  to  the  knowledge  of 
this  witness,  until  after  she  returned  from  the  coast  of  Africa, 
in  August  or  September  1842;  that  after  her  return,  and  after 
the  termination  of  said  voyage,  the  defendants  took  possession, 
and  they  received  the  freight  due  upon  said  charter  party; 
that  when,  or  about  the  time  when  the  said  vessel  was  char- 
tered to  him  the  said  James  Hall,  he  told  said  Boyle,  that  the 


400  CASES  IN  THE  COURT  OF  APPEALS 

Henderson  vs.  Mayhew,  et  al. — 1844. 

said  master,  William  Champion,  might  act  as  his,  Boyle's 
agent,  in  superintending  the  repairs  which  he,  Boyle,  was  bound 
by  the  charter  party,  to  put  upon  said  vessel,  to  fit  her  for  the 
intended  voyage;  and  that  the  said  master  did  superintend 
those  repairs,  and  from  time  to  time,  called  upon,  and  received 
from  said  Boyle,  instructions  or  orders,  where  and  of  whom 
to  procure  materials  for  the  making  of  such  repairs,  and  pur- 
chased them  accordingly;  and  that  the  materials  for  which 
this  suit  is  brought,  were  necessary  for  said  brig  upon  said 
voyage.  And  the  defendants,  for  the  purpose  of  shewing  that 
they  were  mortagees,  out  of  the  possession  of  said  brig,  further 
offered  in  evidence,  by  Charles  Oudesluys,  that  he,  this  wit- 
ness, was  the  clerk  of  the  said  H.  B.,  throughout  the  whole 
of  the  year  1841,  and  until  July  1842;  and  during  that  time, 
acted  in  the  capacity  of  his  book  keeper,  in  his  counting- 
room  in  the  city  of  Baltimore,  the  residence  of  said  B ;  that 
the  witness  drew  up  the  bill  of  sale  from  said  H.  B.  to  the 
defendants,  or  to  three  of  them  therein  named,  and  witnessed 
the  execution  thereof;  that  he  knew  the  object  of  said  bill  of 
sale,  from  the  conversations  he  heard  before  its  execution,  be- 
tween the  said  Boyle  and  William  E.  Mayhew,  one  of  the 
defendants  ;  that  the  object  of  it  was  to  secure  to  the  defen- 
dants, constituting  the  firm  of  William  E.  Mayhew  8f  Co,, 
payment  of  the  said  Hugh  Boyle?*  note,  viz : 

"$2,628.17.  Baltimore,  October  7th  1841.  Four  months 
after  date,  I  promise  to  pay  to  the  order  of  Messrs.  William 
E.  Mayhew  fy  Co.,  twenty-six  hundred  and  twenty-eight  dol- 
lars and  seventeen  cents. 

No.  2163.  Due  7th.  10th  Feb.  1843.  H.  BOYLE." 
That  he,  the  witness,  had  no  particular  instructions  in  what 
form  to  draw  up  the  bill  of  sale;  that  he  made  it  absolute  upon 
its  face,  supposing  it  would  answer  the  object  designed;  that 
in  one  instance  before,  where  Mr.  Boyle  had  made  a  bill  of 
sale  of  a  vessel  called  '•'•The  Serene,"  as  security,  it  was  made 
absolute  on  its  face;  that  the  said  vessel  was  valued  by  Boyle 
at  $6000,  and  he  mentioned  that  sum  to  the  witness,  to  be  put 
as  the  consideration  in  said  bill  of  sale;  that  said  bill  of  sale 


OF  MARYLAND.  401 


Henderson  vs.  Mayhew,  et  al. — 1844. 


was  given  by  the  witness,  after  it  was  drawn  up,  to  Boyle,  who 
the  witness  supposed  read  it,  and  executed  it.  The  money 
which  was  advanced  to  Boyle,  (as  a  discount  of  his  said  note,) 
by  William  E.  Mayhew  Sf  Co.,  was  deposited  by  said  Boyle, 
in  the  Farmers  and  Planters  Bank;  and  this  witness,  as  clerk 
as  aforesaid,  without  any  special  instructions  from  said  Boyle; 
but  in  the  discharge  ol  what  he  considered  his  duty,  as  said 
Boyle's  clerk,  in  the  recording  of  transactions  in  his  business, 
on  the  9th  of  October  1841,  made  the  following  entry  in  said 
Boyle's  journal: 

Copy  of  entry  in  H.  Boyle's  journal,  9th  Oct.  1841. 

"Sundries  to  Bills  Payable. 

Farmers  and  Planters  Bank. 

P'ds,  No.  1218.  4  months,  7th  instant,  for  $2,628.17, 
favor  W.  E.  Mayhew  Sf  Co.,  collaterally  secured  by  a  bill  of 
sale  for  the  brig  Harriet,  valued  at  $6000,  -  $2,573.42 

Interest. 

Out  for  the  discount,       -  54.75 


$2,628.17" 

The  defendants,  for  the  same  purposes,  further  gave  in  evi- 
dence, by  the  said  witness,  Charles  Oudesluys,  that  he  knows 
that  the  identical  account  of  the  plaintiffs,  now  shewn  to  him, 
was  presented  and  left  for  payment  at  the  counting  house  of 
said  Boyle;  and  that  he,  as  clerk  as  aforesaid,  entered  the 
amount  of  said  account  to  the  credit  of  the  plaintiffs,  in  the 
books  of  the  said  Boyle,  on  the  20th  December  1841,  while  it 
was  remaining  in  said  Boyle's  possession ;  that  he  noted  the 
date  of  said  entry  on  the  face  of  said  account,  which  he  now 
recognizes  in  his  handwriting;  that  said  account  was  some- 
time afterwards  withdrawn  by  the  plaintiffs,  or  their  clerk; 
that  the  said  plaintiffs  had  furnished  to  the  said  Boyle,  mate- 
rials for  other  vessels;  and  afterwards,  in  April  1842,  they 
furnished  him  materials  for  the  steamboat  Virginia,  of  which 
Boyle  was  the  sole  owner;  but  never  before  furnished  mate- 
rials for  the  said  brig  Harriet.  That  the  whole  amount  of  the 
accounts  for  materials  or  supplies,  furnished  to  the  said  Boyle 
51  v.2 


402  CASES  IN  THE  COURT  OF  APPEALS 

Henderson  vs.  May  hew,  et  aL — 1844. 

by  the  plaintiffs,  as  credited  to  them  in  his  books,  including 
the  account  for  the  materials  and  supplies  furnished  for  the 
said  brig  Harriet,  is  $507.67.  A  note  was  given  by  Boyle  to 
the  plaintiffs,  for  a  part  of  said  account,  which  fell  due  23rd 
April  1842;  but  said  note  did  not  embrace  the  amount  of  sup- 
plies furnished  the  brig  Harriet,  now  sued  for,  in  this  cause; 
that  said  Boyle  had  owned  the  said  brig  Harriet  for  four  or  five 
years;  that  on  or  about  the  19th  January  1842,  the  said  Wil- 
liam E.  Mayhew,  having  seen  the  advertisement  of  the  time 
of  the  sailing  of  the  said  brig  Harriet,  upon  said  voyage  to  the 
coast  of  Africa,  called  down  at  the  counting  house  of  said 
Boyle,  to  inquire  the  nature  and  particulars  of  said  voyage,  in 
order  to  procure  insurance  upon  said  brig,  and  the  freight  un- 
der the  charter  party;  and  that  about  the  same  time,  this  wit- 
ness drew  up  the  assignment  of  the  charter  party  from  the  said 
Boyle  to  William  E.  May  hew  ty  Co.,  as  a  further  security  for 
the  note  aforesaid,  mentioned  in  said  assignment,  which  he 
saw  said  Boyle  execute,  and  which,  by  his  direction,  this  wit- 
ness delivered  to  the  said  William  E.  Mayhew  on  the  day  of 
its  date,  together  with  the  charter  party  itself;  which  charter 
party  and  assignment,  were  then  read  in  evidence  to  the  jury. 
And  the  defendants,  further  gave  in  evidence  by  the  said  wit- 
ness, Oudesluys,  that  the  said  defendants  never  took  posses- 
sion of  said  brig,  or  exercised  any  control  over  her,  until  after 
her  return  from  Africa,  in  August  or  September  1842;  and 
that  said  B.  continued,  in  all  respects,  to  act  as  the  owner  of 
said  brig,  after  said  bill  of  sale,  as  he  had  done  before  its  exe- 
cution. That  the  amount  of  the  premium  notes,  given  by  the 
said  William  E.  Mayhew  8?  Co.,  for  the  insurance  of  said  brig 
and  freight,  were  credited  to  them  by  this  witness,  in  said 
Boyle's  book,  or  journal,  on  the  29th  of  March  1842. 

Copy  of  entry,  29th  March  1842. 

"Disbursements  of  brig  Harriet  to  Wm.  E.  Mayhew  fy  Co. 
Insurance  effected  by  them  in  their  name  at  the  Neptune  office, 
in  this  city,  19th  January  1842,  viz:  $4000  on  vessel,  and 
$2500  on  freight.  Brig  Harriet,  from  Baltimore  to  American 


OF  MARYLAND.  403 


Henderson  vs.  Mayhew,  et  al. — 1844. 


colonies  on  the  coast  of  Africa,   and  back,  9   per  cent.,  6 
months,       -  -       $685.00 

Two  policies,  at  $1  -  2.00 

$687.00 
Ship  credited  $587." 

That  he  should  have  entered  this  credit  at  the  time  when 
the  insurance  was  effected,  had  he  known  the  amount:  he  says 
he  thinks  there  is  an  error  in  the  amount,  of  one  hundred  dol- 
lars; that  the  said  William  E.  Mayhew  fy  Co.  paid  the  said 
premium  notes,  and  charged  them  in  account  with  said  Boyle, 
against  the  said  brig  and  her  freight;  that  when  the  said  note 
of  Boyle,  in  favor  of  said  firm,  for  $2,628.17,  became  due,  on 
the  10th  of  February  1842,  it  was  not  paid  by  said  Boyle; 
and  this  witness,  as  clerk  as  aforesaid,  credited  the  same  to 
William  E.  Mayhew  fy  Co.,  the  defendants,  in  the  journal  of 
said  Boyle,  as  having  been  secured  by  the  said  bill  of  sale  of 
said  brig  Harriet;  that  the  form  of  the  entry  was  as  follows: 

"February  10,  1842. 

"Bills  Payable  to  W.  E.  Mayhew  Sf  Co.,  No.  1218,  my  note 
discounted  by  them,  due  this  day,  and  not  paid,  secured  by  a 
bill  of  sale  of  the  brig  Harriet,  and  an  assignment  of  her 
freight:  $2,628.17." 

That  after  the  said  bill  of  sale  was  executed,  the  said  Boyle 
continued  in  possession  of  the  said  brig  Harriet,  and  exercised 
acts  of  ownership  over  her,  just  as  if  the  bill  of  sale  had  not 
been  made;  chartered  her  to  James  Hall,  by  the  charter  party 
above  mentioned ;  and  gave  Captain  Champion  orders  where 
to  get  the  materials  for  the  repairs,  which  he,  Boyle,  agreed  to 
put  upon  her,  under  said  charter  party;  that  upon  the  return 
of  said  vessel  from  Africa,  in  August  or  September  1842,  the 
defendants  took  possession  of  said  vessel,  and  sold  her;  that 
the  defendants  had  never  had  any  possession  or  control  over 
said  vessel,  before  her  return  from  Africa,  as  aforesaid ;  that  he, 
the  witness,  never  informed  the  plaintiffs,  that  B.  had  trans- 
ferred the  said  brig  to  the  defendants;  he  thinks  he  went  once 
with  Captain  Champion,  to  the  store  of  Henderson  $f  Co.,  the 


404  CASES  IN  THE  COURT  OF  APPEALS 

Henderson  vs.  Mayhew,  et  al. — 1844. 

plaintiffs;  that  in  July  1843,  Mr.  Boyle  made  an  assignment 
of  his  property  to  Grafton  L.  Dulaney,  in  trust  for  creditors; 
that  after  the  return  of  said  brig,  and  after  she  had  been  sold 
by  the  defendants,  the  witness,  as  agent  of  the  said  Dulaney, 
as  trustee  of  said  Boyle,  called  upon  William  E.  Mayhew  fy 
Co.,  at  their  counting  room,  and  stated  to  said  Mayhew,  that 
the  bill  of  sale  of  said  brig,  and  the  assignment  of  her  freight, 
under  the  charter  party,  had  been  made  by  Boyle,  as  collateral 
security;  and  that  he,  the  witness,  desired  to  know  what  sur- 
plus funds  there  would  be,  and  notified  the  said  Mayhew,  that 
the  surplus  would  be  payable  to  said  Dulaney,  as  trustee,  and 
requested  said  Mayhew  not  to  pay  said  surplus  to  any  other 
persons;  that  said  Mayhew  referred  said  witness  to  Mr.  Cook, 
the  book  keeper  of  said  William  E.  Mayhew  fy  Co.,  for  infor- 
mation, as  to  the  surplus  that  would  remain,  of  the  proceeds 
of  sale,  of  said  brig  and  her  freight,  after  satisfying  their  claims ; 
and  directed  said  book  keeper  to  give  the  witness  the  informa- 
tion desired;  that  said  book  keeper  examined  the  accounts  in 
the  books  of  the  defendants,  and  gave  the  witness  an  extract 
on  a  piece  of  paper,  of  the  amount  of  such  surplus,  as  being 
about  three  hundred  dollars;  that  afterwards,  some  further 
expenses  were  paid,  and  the  amount  reduced.  In  order  that 
the  defendants  might  have  a  more  formal  notice,  the  witness 
went  to  George  M.  Gill,  Esq.,  (Mr.  Dulaney  being  out  of 
town,)  and  told  Mr.  Gill  the  circumstances,  and  requested  him 
to  address  a  line  to  said  defendants,  on  behalf  of  Mr.  Dulaney, 
as  trustee  of  Mr.  Boyle,  and  he  did  so,  and  the  following  is 
the  letter  sent  on  that  occasion : 

"Dear   Sir :    I  understand,  that  after   paying  your  claim 

against  the  brig  Harriet  and  her  freight,  there  will  remain  a 

balance.     To  this  balance,  Mr.  Dulaney,  as  trustee  of  Hugh 

Boyle,  is  entitled,  and  I  now  notify  you  that  it  will  be  claimed. 

GEO.  M.  GILL,  Att'y  for  G.  L.  Dulaney. 

Baltimore  17th  August  1842. 

To  Messrs.  W.  E.  Mayhew  $  Co." 

That  said  Dulaney  sanctioned  said  letter,  and  all  that  the 
witness  did  as  his  agent  in  the  premises ;  that  the  said  Hugh 


OF  MARYLAND.  405 


Henderson  vs.  Mayhew,  et  al. — 1844. 


Boyle  was  in  tolerable  good  credit  when  the  supplies  were 
furnished  by  the  plaintiffs,  for  said  brig,  but  not  in  such  good 
credit  as  he  had  been  before;  that  neither  Boyle  nor  the  wit- 
ness as  his  clerk,  had  made  any  investigations  or  statements 
with  a  view  to  ascertain  his  solvency;  that  he  was,  at  that  time, 
possessed  of  a  considerable  amount  of  property,  real  as  well 
as  personal ;  that  the  witness  could  have  purchased  goods  on 
Boyle's  credit  in  the  market,  without  question  ;  that  the  first 
of  Boyle's  paper  that  was  dishonored,  was  a  note  that  became 
due  on  the  24th  of  December  1841 ;  and  further  stated,  that 
he,  the  witness,  as  the  clerk  and  book  keeper  of  said  Boyle, 
had  knowledge  of  Boyle's  condition,  which  the  public  had  not  • 
but  that  the  public  would  have  trusted  him  at  the  time  the  sup- 
plies sued  for  in  this  action  were  furnished. 

The  plaintiffs  then  prayed  the  court,  by  their  counsel,  as 
follows : 

1st.  That  if  the  jury  shall  believe,  from  the  evidence  in  this 
cause,  that  the  defendants  were  the  owners  of  the  brig  Harriet, 
at  the  time  the  articles  furnished  her  by  plaintiffs  were  sold 
and  delivered,  that  then  the  plaintiffs  are  entitled  to  recover. 

2nd.  That  the  evidence  offered  in  this  cause  by  defendants, 
to  prove  that  the  bill  of  sale  of  6th  October  1841,  was  intended 
to  be  a  mortgage,  is  inadmissible  and  incompetent  for  that 
purpose. 

3rd.  If  the  jury  shall  believe  from  the  evidence,  that  the  de- 
fendants in  this  case  were  the  owners  of  the  brig  Harriet,  at 
the  time  the  supplies  in  this  case  were  furnished,  and  that  said 
supplies  were  charged  to  the  said  brig  and  owners,  and  that 
said  supplies  were  furnished  to  said  vessel,  and  that  the  defen- 
dants received  the  benefit  of  said  supplies  ;  that  the  plaintiffs 
are  entitled  to  recover,  notwithstanding  the  jury  shall  also  find 
that  the  said  supplies  may  have  been  ordered  through  the 
agency  of  Champion,  the  captain  of  said  vessel,  and  that  the 
bill  of  particulars  in  this  case  was  left  with  Boyle  for  set- 
tlement. 

The  defendants,  by  their  counsel,  in  like  manner  prayed  the 
court,  as  follows: 


406  CASES  IJ\  THE  COURT  OF  APPEALS 

Henderson  vs.  Mayhew,  et  al. — 1844. 

1st.  That  if  the  jury  find  from  the  evidence,  that  the  bill  of 
sale  of  6th  October  1841,  from  Boyle  to  the  defendants  (or 
three  of  them,)  was  made  by  way  of  mortgage,  or  collateral 
security,  to  secure  the  payment  of  the  note  of  Boyle  for 
$2,628.17,  dated  7th  October  1841,  at  four  months;  and  that 
the  assignment  of  the  charter  party,  by  Boyle,  to  the  defendants, 
on  the  21st  January  1842,  was  made  as  a  further  security  for 
the  payment  of  said  note;  and  if  the  jury  further  find,  that 
the  defendants  never  gave  any  order  or  authority  to  the  plain- 
tiffs, or  to  any  other  person,  for  the  furnishing  of  the  materials 
charged  in  the  account  of  the  plaintiffs,  the  price  or  value  of 
which,  they  seek  to  recover  in  this  action  ;  and  if  they  further 
find,  that  the  defendants  never  took,  or  had,  or  exercised  any 
possession  or  control  of  the  said  brig,  until  she  returned  to  the 
port  of  Baltimore,  upon  the  termination  of  her  voyage  under 
the  charter  party,  made  between  Hugh  Boyle  and  James  Hall, 
then  the  plaintiffs  are  not  entitled  to  recover  in  this  action  ; 
notwithstanding  that  the  bill  of  sale  is  absolute  on  its  face, 
and  notwithstanding  the  oath  and  registry  made  and  procured 
at  the  custom  house  by  the  defendants,  or  some  of  them,  not- 
withstanding the  insurance  procured   by  the  defendants  upon 
their  order  on  the  vessel  and  freight,  and  notwithstanding  the 
defendants,  after  the  return   of  said  vessel  as  aforesaid,  in 
August  or  September,  1842,  did  take  possession  of  and  sell 
her  for  the  purpose  of  paying  the  defendants  the  amount  of 
the  said  note,  the  premium  of  insurance  on  the  said  vessel  and 
freight,  and  other  expenses  incidental  to  the  entryof  the  vessel 
at  the  port  of  Baltimore. 

2nd.  If  the  jury  find,  from  the  evidence,  that  the  supplies 
charged  in  the  plaintiffs'  account  were  furnished  to  the  brig 
Harriet,  upon  the  credit  and  upon  the  authority  of  H.  B.,  and 
not  upon  the  credit  of  the  defendants,  that  then  the  plaintiffs 
are  not  entitled  to  recover. 

3rd.  If  the  jury  find,  from  the  evidence,  that  the  defendants 
never  took  possession  of,  nor  exercised  any  control  over  the 
brig  Harriet,  until  she  returned  from  her  voyage  under  the 
charter  party;  and  that  between  the  23rd  of  November  and 


OF  MARYLAND.  407 


Henderson  vs.  Mayhew,  et  al. — 1844. 


the  15th  December  1841,  inclusive,  (comprising  the  dates  of 
the  plaintiffs'  account,)  James  Hall,  the  freighter,  or  Wm. 
Champion,  as  the  master  appointed  by  him,  or  both  together, 
had  the  actual  possession  and  charge  of  said  vessel,  under  said 
charter  party ;  and  that  the  plaintiffs,  within  that  period,  did 
not  know  that  the  defendants  had  any  title  or  interest  in  said 
vessel,  but  knew,  or  supposed,  that  H.  B.  had  been,  and  was, 
the  owner  of  said  vessel,  that  then  the  plaintiffs  are  not  enti- 
tled to  recover  in  this  action,  by  reason,  that  the  law  upon  that 
state  of  facts,  does  not  raise  or  imply  an  assumpsit  on  the  part 
of  the  defendants,  to  pay  for  the  supplies  furnished  by  plaintiffs 
for  said  vessel,  within  that  period,  upon  the  order  of  the  said 
master,  without  the  knowledge  or  authority  of  the  defendants. 
The  county  court  (ARCHER,  C.  J.  and  PURVIANCE,  A.  J.,) 
rejected  the  first  and  third  prayers  offered  by  the  plaintiffs,  and 
granted  the  second  prayer  offered  by  them. 

The  court  also  refused  the  first  prayer  offered  by  the  defen- 
dants, and  granted  their  second  prayer,  and  in  addition  thereto, 
and  in  lieu  of  the  defendants'  third  prayer,  gave  also  the  fol- 
lowing instructions  to  the  jury. 

If  the  jury  believe  that  the  defendants  were  owners  of  the 
brig,  yet  if  they  believe  that  Hugh  Boyle,  with  the  consent  and 
permission  of  the  defendants,  chartered  the  brig  to  Hall,  for  a 
voyage  to  the  coast  of  Africa,  according  to  the  terms  of  the 
charter  party  offered  in  evidence,  and  that  the  same  was  as- 
signed by  Boyle,  as  a  security  to  the  defendants,  for  their 
indebtedness  to  him,  and  that  the  defendants  accepted  said 
assignment,  and  that  the  materials  for  which  this  suit  is  brought 
were  furnished  after  the  date  of  the  charter,  and  before  the  date 
of  the  assignment,  the  defendants,  as  legal  owners  of  the  ship, 
are  not  answerable  for  the  materials  furnished,  unless  the  jury 
should  \believe,  that  the  plaintiffs  furnished  the  materials  on  the 
credit  of  the  defendants,  as  the  legal  owners. 

To  the  rejection  by  the  court,  of  ihe  first  and  third  prayers, 
offered  by  the  plaintiffs,  and  the  granting  of  the  second  prayer, 
offered  by  the  defendants,  and  additional  instructions  of  the 
court,  the  plaintiffs,  by  their  counsel,  excepted. 


408  CASES  IN  THE  COURT  OF  APPEALS 

Henderson  vs.  Mnyhew,  et  aL — 1844. 

The  defendants,  under  the  provisions  of  the  act  of  Assem- 
bly of  December  session. 1831,  chap.  319,  beg  leave  to  except, 
as  well  to  the  opinion  of  the  court  in  refusing  to  grant  their 
first  and  third  prayers,  as  also  to  the  opinion  of  the  court  in 
granting  the  plaintiffs'  second  prayer,  and  prayed  the  court  to 
sign  and  seal  this  bill  of  exceptions  on  their  behalf,  which  was 
done. 

Both  parties  appealed  to  this  court. 

The  cause  was  argued  before  DORSEY,  SPENCE  and  MA- 
GRUDER,  J. 

By  TEACKLE  and  STEELE,  D.  A.  G.,  for  the  plaintiffs 
below,  and 

By  HINCKLEY  for  the  defendants  below. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

This  action  was  brought  by  the  appellants,  to  recover  from 
the  appellee  a  sum  of  money  alleged  to  be  due,  for  supplies 
furnished  for  the  brig  Harriet,  by  the  appellants. 

It  is  not  disputed  that  the  supplies  were  furnished,  but  it  is 
insisted  by  the  appellees,  that  they  are  not  responsible  for 

them. 
1st.  Because  they    were   not  the   owners    of  the    vessel: 

2nd.  Because  the  credit  was  given  to  another,  to  wit,  to 
Hugh  Boyle. 

There  was  certainly  evidence  offered  to  the  jury,  that 
the  appellees  were  the  owners  of  the  vessel  at  the  time 
that  she  was  furnished  with  the  supplies.  But  the  account 
against  the  vessel  and  its  owner,  was  sent  to  Boyle,  and  this 
it  is  supposed,  was  giving  credit  to  him.  It  appears  how- 
ever, that  Boyle  was  at  one  time  the  owner  of  the  vessel,  and 
it  would  seem  that  the  account  was  sent  to  him,  under  an  im- 
pression that  he  was  still  the  owner.  This  proof  of  the  account 
being  sent  to  Boyle,  cannot  discharge  the  owner,  if,  but  for 
this  proof,  he  would  have  been  answerable.  Unless  the  seller 
knows  at  the  time  who  the  principal  is,  and  notwithstanding 
that  knowledge,  makes  the  agent  his  debtor,  the  principal  is 


OF  MARYLAND.  409 


Henderson  vs.  Mayhew,  et  al, — 1844. 


not  discharged.  (See  Roscoe  on  Evidence  216,  and  the  autho- 
rities there  collected.)  Notwithstanding  all  the  testimony,  then, 
on  the  part  of  the  appellees,  designed  to  show  that  the  credit 
was  given  to  Boyle,  the  former  may  be  answerable,  and  it  is 
a  material  question  in  the  case,  whether  Boyle,  in  purchasing 
these  supplies,  is  not  to  be  regarded  as  the  agent  of  the  appel- 
lees? There  was  testimony  offered  to  the  jury,  "tending 
to  prove"  the  agency.  Of  the  weight  to  which  that  testimony 
was  entitled,  the  jury  are  the  exclusive  judges. 

The  court  below,  therefore,  erred  in  granting  the  second 
prayer  of  the  defendants  below,  as  it  withdrew  the  question 
of  agency  from  the  consideration  of  the  jury,  and  also  in  giv- 
ing the  instruction  which  was  given,  in  lieu  of  the  instruction 
asked  for  by  the  appellees  in  their  third  prayer. 

No  error  is  discovered  in  the  rejection  of  the  appellants' 
first  or  third  prayer. 

The  appellants,  who  were  defendants  in  the  court  below,  took 
exception  to  the  opinion  of  the  court,  that  parol  evidence  was 
inadmissible  to  show,  that  the  bill  of  sale  was  intended  to  be 
a  mortgage.  It  is  the  opinion  of  this  court,  that  the  decision 
was  correct.  Parol  evidence  is  inadmissible  to  change  or  con- 
tradict the  terms  of  a  written  instrument.  Strangers  to  the 
instrument,  when  authorized  to  impeach  or  contradict  it,  may 
offer  parol  testimony  for  that  purpose;  and  so  a  grantor  may, 
in  a  controversy  with  the  grantee,  if  he  charges  the  same  to 
have  been  obtained  by  fraud  or  mistake.  But  the  parties  to  a 
written  instrument  are  not  permitted,  in  controversies  with 
strangers,  to  insist,  that  it  does  not  express  what  it  was  in- 
tended to  express.  The  appellants,  after  obtaining  an  abso- 
lute deed,  and  authorizing  the  community  to  regard  them  as 
the  owners  of  the  vessel,  cannot  now,  for  their  own  benefit,  be 
permitted  to  allege  that  their  bill  of  sale  is  a  mortgage. 

The  party  here,  who  is  a  stranger  to  the  deed,  insists,  that 
it  is  what  it  purports  to  be,  and  the  appellants  who  accepted 
it,  are  precluded  from  offering  the  evidence  on  which  they 
rely,  in  order  to  defeat  the  action  against  them. 
52        v.2 


410  CASES  IN  THE  COURT  OF  APPEALS 


The  Charleston  Ins.  &  Trust  Co.  r«.  Corner.— 1844. 

Judgment  must  therefore  be  reversed  upon  the  appeal  of  the 
plaintiffs  below,  upon  this  second  prayer;  and  upon  the  in- 
structions given  by  the  court  to  the  jury.  And  affirmed  upon 
their  first  and  third  prayers. 

Upon  the  appeal  of  the  defendants  below,  the  instructions 
to  which  they  excepted,  are  affirmed. 

DORSEY,  J.,  dissented  to  the  affirmance,  upon  the  appeal  of 
the  defendants  below. 

JUDGMENT  REVERSED  UPON  THE  APPEAL  OF  J.  &  G. 
HENDERSON,  AND  PROCEDENDO  AWARDED. 


THE  CHARLESTON  INSURANCE  AND  TRUST  COMPANY  vs.  JAS. 
J.  CORNER  AND  THOMAS  COBNER. — December,  1844. 

Freight  was  insured  on  a  voyage,  at  and  from  M.  V.  to  C.  C.,  and  at  and 
from  thence  to  B.,  estimated  at  $4000.  It  was  due  at  B.,  on  the  right 
delivery  of  the  cargo  there.  The  vessel  proceeded  to  C.  C.,  and  there 
delivered  find  took  in  cargo.  While  her  lading  was  in  progress,  she  was  for- 
cibly taken  possession  of  by  a  foreign  ship  of  war,  and  carried  back  to  M.  V.; 
where,  after  some  detention,  in  March  1839  she  was  restored  to  her  master, 
who  claimed  full  freight  from  the  charterer,  which  he  resisted ;  and  upon 
a  submission  to  arbitration,  the  vessel  was  allowed  $1200,  and  the  charter 
party  cancelled.  C.  C.  being  now  blockaded,  the  voyage  .was  broken  up 
and  abandoned.  On  the  2nd  May  1830,  (forty-seven  days  after  her  cap. 
ture,)  the  master  chartered  her  on  another  voyage,  from  M.  V.  to  H.  In 
an  action  against  the  underwriter,  it  was  HELD  : 

1st.  That  as  a  contract  of  insurance  is  one  of  indemnity,  the  doctrine  of 
salvage  for  freight,  has  been  introduced  as  a  fair  item  in  the  adjustment  of 
actual  loss ;  and  that  the  underwriter  was  entitled  to  a  credit  for  the  sum 
paid  the  master,  on  account  of  freight. 

2nd.  The  doctrine  of  salvage  for  freight  is  confined  to  freight  earned  on  the 
particular  cargo  contemplated  in  the  policy,  or  other  freight  earned  on  the 
same  voyage.  In  such  case,  the  insurer  is  only  liable  for  the  difference, 
because  that  is  the  extent  of  the  actual  loss  by  that  voyage. 

3rd.  After  time  sufficient  for  the  completion  of  the  original  voyage,  had 
elapsed,  the  master  of  the  vessel  not  being  able  to  proceed  on  that,  is  at 
liberty  to  enter  upon  another,  and  distinct  voyage:  and  the  freight  earned 
upon  the  latter  voyage,  will  not  enure  to  the  benefit  of  the  underwriter. 

4th.  The  time  in  which  a  voyage  should  be  performed,  is  a  question  of  fact  ? 
and  not  to  be  assumed,  or  asserted  by  the  court. 


OF  MARYLAND.  411 


The  Charleston  Ins.  &  Trust  Co.  vs.  Corner— 1844. 


5th.  Upon  a  policy  for  account  of  whom  it  may  concern,  in  an  action  by  A., 
where  the  plaintiff  did  not  disclose  by  the  pleading,  any  other  interest  or 
damage,  than  that  which  A.  had,  or  sustained,  ho  cannot  recover  for  more 
than  the  proportion  in  which  he  was  interested. 

Where  the  plaintiff'  offered  in  evidence  verbal  and  written  testimony,  to 
maintain  his  issue  in  an  action  of  assumpait,  part  of  which,  in  writing, 
was  admitted  by  the  defendant,  as  evidence  of  the  facts  recited  in  it ;  part, 
as  if  regularly  proved  under  a  commission — another  portion  being  a  depo- 
sition of  a  witness,  no  part  of  the  plaintiff's  proof  being  contradicted,  he 
cannot  assume  that  the  jury  will  find  the  facts  accordingly;  and  pray  the 
court  to  instruct  them,  upon  that  assumption. 

The  sufficiency  of  evidence  to  satisfy  a  jury,  or  the  circumstance,  that  it  is 
all  on  one  side,  does  not  authorize  the  court  to  direct  them,  that  it  proves 
a  fact  in  controversy. 

The  jury  have  the  power  to  refuse  their  credit  to  parol  testimony,  and  no 
action  of  the  court  should  control  the  exercise  of  their  admitted  right,  to 
weigh  its  credibility. 

A  charter  party  granted  and  let  on  freight,  the  whole  tonnage  of  a  vessel, 
for  a  voyage  from  AT.  V.  to  C.  C.,  and  thence  to  B.  When  the  lading  at 
C.  C.  was  completed,  she  was  to  depart  and  proceed  to  B.;  where  the  cargo 
was  to  be  discharged,  and  thus  end  the  voyage.  In  consideration  of 
which,  the  charterer  agreed  to  pay  the  owners  a  gross  sum,  "payable  on 
the  right  delivery  of  the  cargo  at  B."  The  vessel  received  cargo  at  M.  V.; 
proceeded  to  C.  C.;  where  a  part  was  landed,  and  a  part  of  the  cargo 
destined  to  B.,  shipped.  At  this  time  she  was  was  forcibly  taken  possession 
of  by  a  ship  of  war,  and  carried  back,  by  force,  to  M.  V.;  where  she  was, 
after  some  delay,  restored  to  her  master.  Under  such  circumstances,  the 
charter  party  did  not  impose  an  obligation  on  the  charterer  to  pay  the  whole 
freight  at  M.  V.,  as  if  the  vessel  had  proceeded  to  B.  The  intent  of  the 
charter  was, 'that  a  full  and  complete  cargo  should  be  received  at  C.  and 
delivered  at  B.,  to  entitle  the  owner  to  full  freight;  the  charterer  being  in 
no  default. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  assumpsit,  commenced  on  the  31st 
December  J839,  by  the  appellees  against  the  appellants. 

The  plaintiffs  declared,  on  the  policy  mentioned  in  the  bill 
of  exceptions,  and  assigned  as  a  breach  of  the  contract,  that 
heretofore,  to  wit,  on  the  20th  February  1839,  divers  goods  of 
great  value  had  been  and  were  shipped  and  loaded  at  Monte 
Video,  in  and  on  board  the  said  brig  or  vessel,  in  the  said 
policy  of  insurance  mentioned,  to  be  carried  and  conveyed 
therein,  on  and  for  freight  in  and  during  said  voyage,  to  wit, 


412  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner.— 1844. 

at  the  county  aforesaid,  and  that  they,  the  said  plaintiffs,  were 
then  and  there,  from  thence  until,  and  at  the  time  of  the  loss 
hereinafter  mentioned,  interested  in  the  fieight  of  the  said 
goods  so  shipped  and  loaded  as  aforesaid,  to  a  large  value  and 
amount,  to  wit,  to  the  value  and  amount  of  all  the  moneys  by 
them  ever  insured,  or  caused  to  be  insured  thereon,  to  wit,  at 
the  county  aforesaid.  And  the  said  plaintiffs  in  fact,  further 
say,  that  heretofore,  to  wit,  on  20th  February  1839,  the  said 
brig  or  vessel,  with  the  said  goods  on  board  thereof,  departed 
and  set  sail  from  Monte  Video  aforesaid,  on  her  said  voyage 
towards  Corrientes  aforesaid,  and  that  the  freight  of  the  said 
goods,  in  the  case  of  her  arrival  there,  would  have  amounted 
to  a  large  sum  of  money,  to  wit,  the  sum  of  four  thousand 
dollars ;  and  that  afterwards,  and  whilst  the  said  brig  was  at 
anchor  in  the  bay  near  Cape  Corrientes,  to  wit,  on  the  16th  of 
March  1839,  the  said  brig  or  vessel,  with  said  goods  on  board 
thereof  as  aforesaid,  were  on  the  high  seas,  to  wit,  at  the 
county  court  aforesaid,  with  force  and  arms,  and  in  an  hostile 
manner  boarded,  captured,  seized  and  forcibly  taken  possession 
of,  and  the  American  flag  hauled  down  by  the  French  vessel  of 
war,  the  Perle,  and  the  captain,  officers  and  crew  of  the  said 
brig  Eliza  Davidson,  made  prisoners,  a  part  of  whom  were  sent 
on  board  the  said  vessel  of  war,  the  Perle.  And  owing  to  the 
arrests,  restraints  and  detainments  of  kings  and  princes,  the 
said  plaintiffs  thereby,  then  and  there  lost,  and  were  deprived 
of  the  freight  of  the  said  goods  and  merchandise  so  on  board 
the  said  brig,  on  freight  as  aforesaid,  at  the  county  aforesaid; 
of  all  which  said  several  premises,  the  said  defendants  after- 
wards, to  wit,  on  the  day  and  year  last  aforesaid,  at  the  county 
aforesaid,  had  notice,  and  were  then  and  there  requested,  by 
the  said  plaintiff,  to  pay  them  the  said  sum  of  $4,000,  so  by 
them  insured  to  the  said  plaintiff  as  aforesaid,  &c. 

The  defendants  appeared  and  pleaded  the  general  issue. 

The  jury  found  a  verdict  for  the  plaintiffs,  $3,437.70,  on 
which  judgment  was  rendered. 

At  the  trial  of  the  cause,  the  plaintiffs  offered  in  evidence  the 
following  proposal  for  insurance,  accompanied  by  the  letter  of 


OF  MARYLAND.  413 

The  Charleston  Ine.  &,  Trust  Co.  vs.  Corner — 1844. 

John  1.  Mattison,  of  the  2nd  of  February  1839,  and  the  con- 
sular certificate  of  JR.  M.  Hamilton. 

"Dollars  four  thousand,  on  freight  of  goods,  estimated  at — 
Dollars  three  hundred,  on  Chronometer. 

The  above  sums  are  offered  for  insurance  by  J.  J.  Corner  Sf 
Bro.,  on  account  of  whom  concerned  (citizens  of  the 

United  States,)  per  the  .American  brig  Eliza  Davidson, 

Mattison  master,  at  and  from  Monte  Video  to  Cape  Corrientes, 
and  at  and  from  thence  to  Boston.     The  vessel  safe  at 
intended  to  sail  on  or  about  14th  February,  from  Monte  Video. 
Sailed  from  N.  B.  Every  circumstance  material  for  the 

underwriters  to  know,  so  as  to  form  a  just  opinion  of  the  above 
risk,  is  disclosed  in  this  offer.  22nd  April,  1839.  The  pre- 
mium on  the  above  vessel  was  fixed  by  the  agent  of  the  Charles- 
ton Insurance  and  Trust  Company,  at  the  agency  in  Baltimore, 
this  22nd  day  of  April  1839,  and  at  the  rate  of  If  per  ct. 
Accepted — J.  J.  CORNER  &  BRO." 

"Monte  Video,  February  2nd,  1839.  Messrs.  Jas.  J.  Corner 
#  Bro.,  Baltimore.  Gentlemen, — Since  my  last,  per  Mentor, 
I  have  chartered  the  brig  E.  Davidson,  to  load  part  of  a  cargo 
at  this  port  and  proceed  to  Cape  Corrientes,  in  the  lat.  of  38° 
south,  and  there  load  with  a  cargo  of  bale  goods  for  Boston, 
allowing  the  shippers  fifty  lay  days  at  the  Cape,  for  the  round 
sum  of  four  thousand  Spanish  dollars.  To  obtain  this  freight, 
I  have  agreed  to  give  them  the  use  of  what  funds  I  may  have, 
at  par,  for  a  draft  at  sight  on  Boston.  I  shall  sail  from  here 
on  or  about  the  14th  inst.  You  will  please  make  insurance  on 
the  amount  of  the  charter,  and  $300  on  a  chronometer  I  bought 
here.  The  port  I  am  about  to  proceed  to  is  in  the  province 
of  B.  JJyres,  but  is  not  included  in  the  blockade,  as  you  will 
perceive  by  the  annexed  certificate  of  the  U.  S.  Consul. 

I  remain  your  ob't.  serv't.,         JOHN  I.  MATTISON." 
"Consulate  of  the  United  States.     I,  the  undersigned,  consul 
of  the  United  States,  do  hereby  certify  that  the 

[Consular     port  of  Corrientes,  to  which  the  brig  Eliza  Da- 
Seal.]        vidson  is  bound,  is  not  within  the  limits  of  the 
blockade  by  the  French  squadron.    Given  under 


414  CASES  IN  THE  COURT  OF  APPEALS 


The  Charleston  Ins   &  Trust  Co.  vs.  Corner.— 1844. 

my  hand  and  seal  at  Monte  Video,  this  2nd  of  February  1839. 

R.  M.  HAMILTON." 

And  the  policy  of  insurance  following,  which  was  admitted 
to  have  been  signed  by  T.  P.  Williams,  the  authorised  agent 
of  the  defendants : 

"By  the  Charleston  Insurance  and  Trust  Company.  Open 
policy,  No.  65.  This  policy  of  insurance  wit- 
Freight,  nesseth,  that  the  Charleston  Insurance  and 
Chronometer.  Trust  Company  have  insured,  and  by  these  pre- 
sents do  insure  James  J.  Corner  8f  Bro.,  at  and 
from  Monte  Video  to  Cape  Corrientes,  and  at  and  from  thence  to 
Boston,  as  per  annexed  endorsements,  as  well  in  his  or  their 
own  name,  as  in  the  name  or  names  of  all  and  every  other  per- 
son or  persons  to  whom  the  same  doth,  mayor  shall  appertain, 
in  part  or  in  whole,  lost  or  not  lost:  beginning  the  adventure 
respectively  upon  the  property  insured,  that  is  to  say,  on  all 
lawful  goods  and  merchandize,  from  and  immediately  follow- 
ing the  loading  thereof,  and  so  shall  begin,  continue  and  endure 
until  said  goods,  merchandize  or  freight  shall  be  safely  landed: 
and  on  vessels,  the  risk  shall  begin  at  and  from  the  places  of 
departure,  and  so  shall  continue  and  endure  till  said  vessel 
shall  have  arrived,  and  been  moored  at  anchor  twenty-four 
hours  in  safety,  &c.  The  adventures  and  perils  which  the  said 
Insurance  Company  are  contented  to  bear,  and  take  upon  them, 
are  of  the  seas,  &c.,  enemies,  pirates,  &c.,  restraints  and  de- 
tainments  of  all  kings,  princes  or  people,  of  what  nation  or 
quality  soever,  &c. ;  and  of  all  such  other  losses  or  misfortunes 
which  have,  or  shall  come  to  the  damage  or  detriment  of  the 
property,  or  any  part  thereof,  as  insurers  are  legally  accountable 
for.  Warranted,  nevertheless,  by  the  insured,  free  from  any 
charge,  damage  or  loss,  which  may  arise  from,  or  in  conse- 
quence of  any  illicit  or  prohibited  trade,  or  trade  in  articles 
contraband  of  war,  &c. 

In  witness  whereof,  the  Charleston  Insurance  and  Trust 
Company  have  caused  these  presents  to  be  signed  by  their 
agent  in  the  city  of  Baltimore,  this  22nd  day  of  April  1839. 

THOS.  P.  WILLIAMS, 
Agent  of  the  Charleston  Insurance  and  Trust  Co." 


OF  MARYLAND.  415 


The  Charleston  Ins.  &  Trust  Co.  vs.  Corner. — 1844. 

"$4000  on  freight.     300  on  chronometer." 

They  further  offered  in  evidence  the  charter  party,  follow- 
ing, viz: 

"This  charier  party  of  affreightment,  made  and  entered  into 
this  1st  February  1839,  between  John  I.  Mattison,  master  of 
the  brig  Eliza  Davidson,  now  lying  in  the  harbor  of  Monte  Video, 
of  the  one  part,  and  Alfred  Peabody  of  the  other  part.  Wit- 
nesseth,  that  the  said  John  1.  Mattison,  for  the  consideration 
hereinafter  mentioned,  has  covenanted,  granted  and  let  on 
freight,  unto  the  said  Alfred  Peabody,  the  whole  tonnage  of 
the  said  brig  Eliza  Davidson,  for  a  voyage  to  be  made  with 
the  said  brig,  in  manner  hereinafter  mentioned.  And  the  said 
John  I.  Mattison  does  hereby  promise,  that  the  said  brig  shall 
be  staunch,  &c.,  and  that  she  shall  receive  on  board  from  the 
said  Alfred  Peabody,  goods  to  the  amount  of  sixty  tons,  or 
thereabouts,  with  which  she  will  proceed  to  Cape  Corrientes, 
where  she  will  discharge  said  goods,  and  receive  on  board 
from  the  said  Jllfred  Peabody,  a  full  and  complete  cargo  of 
bales,  &c.,  the  same  to  be  put  on  board  at  the  expense  of  the 
said  Jllfred  Peabody,  and  when  the  said  lading  is  completed, 
to  depart  and  proceed  to  the  port  of  Boston,  where  the  cargo 
is  to  be  discharged;  and  being  there  arrived,  the  said  lading 
to  be  delivered  to  the  said  Alfred  Peabody,  or  his  agents  or 
assigns,  and  thus  end  the  voyage,  (excepting  always  against 
the  dangers  of  the  seas,  robbers,  pirates,  restraints  of  princes 
and  rulers,  and  all  unavoidable  accidents  and  calamities,)  for 
and  in  consideration  of  which,  the  said  Jllfred  Peabody  con- 
sents, promises  and  agrees,  to  and  with  the  said  John  I.  Mat- 
tison, that  there  shall  be  paid  to  him,  his  agents  or  assigns, 
the  sum  of  four  thousand  one  hundred  Spanish  dollars,  or 
equivalent,  payable  on  the  right  delivery  of  the  cargo  at  the 
aforesaid  port  of  Boston.  And  the  said  John  I.  Mattison  fur- 
ther promises  and  agrees,  to  allow  fifty  running  days  to  un- 
lade, &c." 

"The  above  charter  party  is  cancelled  this  day.  Monte 
Video,  April  2nd,  1839.  ALFRED  PEABODY." 


416  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner. — 1844. 

The  plaintiff  also  offered  in  evidence,  the  protest  made  be- 
fore the  consul  of  the  United  States  to  the  Oriental  Republic 
of  the  Uruguay,  by  John  I.  Mattison,  master,  and  others  of 
the  American  brig,  Eliza  Davidson  of  Baltimore,  who  being 
duly  sworn,  did  depose  as  follows : 

"That  he,  the  deponent,  having  engaged  with  Mr.  Jttfred 
Peabody,  a  citizen  of  the  United  States,  to  perform  a  voyage 
in  the  brig  under  his  command,  fron  Monte  Video  to  Loberia 
Chica,  on  the  coast  of  Patagonia,  and  from  thence  to  Boston, 
in  the  United  States,  did  sail  from  the  said  port  of  Monte  Video 
on  the  20th  February  1839 ;  and  that  on  the  23rd  of  same 
month,  at  1  o'clock,  P.  M.,  made  the  land,  the  north  part  of 
Cape  Corrientes,  distant  about  ten  miles,  and  at  4  o'clock,  P. 
M.,  the  harbor  near  Corrientes  bore  W.  N.  W.  seven  miles,  at 
which  time  he  tacked,  &c.  On  the  24th  made  the  land  again, 
bearing  W.  N.  W.,  the  weather  being  boisterous,  kept  an 
offing ;  on  the  25th,  at  6,  A.  M.,  the  weather  having  become 
moderate,  made  all  sail  for  the  land  ;  at  10  h.  30  m.  A.  M., 
made  Cape  Corrientes  ;  at  1  h.  30  m.  P.  M.,  came  to  anchor 
in  the  bay ;  on  the  26th,  the  deponent  went  on  shore,  and 
returned  with  some  laborers  in  the  boat,  and  commenced  dis- 
charging his  cargo,  &c ;  on  the  3rd  March,  discharged  and 
received  a  cargo  on  board ;  the  4th,  weighed  the  anchors  and 
run  near  the  shore  to  make  a  better  harbor — discharged  and 
received  cargo  on  board,  &c.;  the  16th  same  month,  observed  a 
vessel  in  the  offing,  being  the  first  since  their  anchorage  in  the 
bay;  at  10  A.  M.,  she  proved  to  be  the  French  vessel  of  war } 
"the  Perle,"  which  boarded  the  brig  and  took  immediate  and 
forcible  possession,  and  hauled  down  the  American  flag,  and 
made  prisoner  of  the  deponent,  his  officers  and  crew,  part  of 
whom  were  sent  on  board  the  Perle;  these  steps  were  taken  by 
the  French  officer  and  his  crew  prior  to  his  asking  for  the 
vessel's  papers,  or  any  question  by  which  they  could  have  as- 
certained the  national  character  of  the  said  vessel — eleven 
Frenchmen  remained  in  charge  of  the  brig,  with  their  arms 
about  them;  at  4  P.  M.,  they  descended  into  the  hold,  and 
drew  off  a  portion  of  wine  and  rum  for  their  use,  being  part 


OF  MARYLAND.  417 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner.— 1844. 

of  the  cargo;  at  5  P.  M.,  they  attempted  to  get  the  brig  under 
way,  in   doing  which,  they  upset  the  windlass,  and  carried 
away  the  greater  part  of  the  pall  plates;  at  6  A.  M.,  they  con- 
cluded to  remain  at  anchor  during  the  night,  and  set  a  watch, 
five  men  in  each,  all  armed — in  hoisting  some  casks  of  water 
on  board,  they  spilled   a  large  quantity  on  the  goods  in  the 
hold,  which  caused  considerable  damage;  on  the  17th,  strong 
breezes  from  the  northward  and  eastward;  at  6  A.  M.,  the 
boats  of  the  Perle  boarded  us  with  about  twenty  men,  and  im- 
mediately got  the  brig  under  way,  cutting  the  running  rigging 
and  breaking  many  articles  that  came  in  their  way;  they  also 
broached  the  brig's  provisions,  and  used  them  without  cere- 
mony.    March  18th,  the  French  crew  regularly  drew  from  the 
cargo  three  buckets  full  of  wine  per  day,  and  used  the  brig's 
provisions  extravagantly,  and  the  vessel  was  managed  so  badly, 
that  the  deponent  considered  the  safety  of  the  vessel,  and  his 
life  in  great  danger,  there  being  but  two  able  seamen  among 
the  French  crew ',  on  the  20th  same  month,  at  8  A.  M.,  made 
Monte  Video  ;  at  1  P.  M.,  came  to  anchor  within  half  gunshot 
of  the  flag  ship  of  the  French  Admiral,  after  which  an  officer 
from  the  Perle  came  on  board,  and  took  an  inventory  of  the 
cargo  on  board,  and   the  vessel's  roll,  clearance  and  bill  of 
health  ;  on  the  21st,  the  mate  of  the  brig  was  sent  from  the 
Perle  on  board,  and  the  deponent  was  permitted  to  go  on  shore, 
the  French  crew  still  in  the  possession  of  said  brig,  and  the 
greater  part  in  a  state  of  intoxication,  having  free  access   to 
the  wine  and  spirits,  and  provisions  generally;  25th,  at  1  P. 
M.,  Commodore  Nicholson,  in  command  of  the  U.  S.  Squadron, 
came  along  side  of  the  brig,  accompanied   by  the  American 
Consul,  and  took  the  deponent  on  shore  for  the  purpose  of  an 
interview  with  the  French  Admiral,  who,  through  the  demand 
of  Commodore  Nicholson,  determined  to  give  up  the  vessel  and 
cargo  on  board,  to  the  deponent,  but  refused  any  remuneration 
as  damages  for  the  detention  and  illegal  capture  of  said  brig. 
On  the  26th  same  month,  at  7  A.  M.,  a  boat  from  the  Perle 
came  along  side,  and  placed  the  original  crew  of  the  brig  on 
board,  and  took  the  French  officer  and  crew  from  on  board, 
53     v.2 


418  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner. — 1844. 

thus  delivering  the  vessel  to  the  deponent,  after  having  forcible 
possession  for  ten  days,  during  which  time  the  said  brig  suf- 
fered severely  in  her  sails,  rigging,  &c.,  in  consequence  of 
negligence  and  the  incapacity  of  the  French  crew.  And  the 
deponent  further  declares,  that  he  was  not  asked  for  his  ves- 
sel's papers  until  nearly  half  passage  to  Monte  Video,  from 
Loberia  Chica,  and  that  he  then  refused  them,  upon  the  ground 
that  he  had  been  illegally  captured,  and  that  the  said  papers 
should  have  been  asked  for  prior  to  taking  and  holding  pos- 
session of  the  said  vessel,  and  that  after  the  anchorage  near 
the  Admiral's  ship,  an  officer  from  the  Perle  came  on  board 
and  demanded  the  papers,  which  were  delivered  by  the  depo- 
nent, viz :  roll,  clearance,  and  bill  of  health,  which  were 
afterwards  returned.  Therefore,  &c. 

Signed,  JOHN  I.  MATTISON." 

And  which  was  admitted  as  evidence  of  the  facts  therein 
recited. 

The  certificate  of  Alfred  Peabody  declared  that,  "  On  the 
first  day  of  February  1839,  I  chartered  from  Capt.  J.  1.  JVf., 
the  brig  E.  /).,  under  his  command,  and  lying  in  the  har- 
bor of  M.  V.,  for  a  voyage  hence  to  C.  C.,  and  thence 
to  the  port  of  J5.,  for  the  round  sum  of  $4,100;  that  the 
the  said  brig  proceeded  to  her  first  place  of  destination,  and 
while  there,  partially  laden,  was  forcibly  taking  possession  of 
by  one  of  the  French  blockading  squadron,  and  brought  to  this 
port,  by  which  act,  the  voyage  was  destroyed.  That  Capt. 
Jlf.,  on  his  arrival  here,  claimed  the  full  amount  of  the  charter 
of  his  vessel,  as  per  charter  party,  which  I  refused  to  comply 
with,  on  the  plea,  that  he  had  not  fulfilled  his  part  of  the  con- 
tract by  the  non-completion  of  the  voyage;  that  Capt.  M. 
refused  to  deliver  up  any  part  of  the  cargo  taken  on  board  at 
C.  C.,  until  his  charter  was  satisfied;  that  to  avoid  unneces- 
sary expense  and  delay,  we  finally  agreed  to  leave  the  matter 
to  arbitration,  and  that  it  was  settled  accordingly.  I  further 
certify,  that  had  Capt.  M.  refused  to  comply  with  the  decision 
of  the  arbitrators,  and  had  still  insisted  on  the  full  amount  of 
his  charter,  I  should  have  protested  against  him,  having  ad- 


OF  MARYLAND.  419 


The  Charleston  Ins.  &,  Trust  Co.  vs.  Corner. — 1844. 

vised  the  consul  of  the  United  States  of  my  intention  to  that 
effect,  and  should  have  applied  to  the  authorities  here  to  have 
detained  his  vessel  until  the  property  on  board  of  her  had  been 
delivered  up  to  me,  on  my  paying  that  portion  of  the  charter 
determined  by  the  arbitrators.  In  testimony  whereof,  I  here- 
unto set  my  hand,  this  30th  April  1840. 

ALFRED  PEABODY." 

Which  it  was  agreed  should  be  received  as  evidence  as  fully 
as  if  regularly  proved  under  a  commission. 

The  plaintiffalso  proved  the  awards  following: 
"Having  been  called  upon  to  arbitrate  in  the  case  of  a  dis- 
pute which  has  arisen  between  Mr.  Peabody,  the  charterer  of 
the  brig  E.  D.,  and  J.  M.,  the  master  of  that  brig,  with  regard 
to  the  amount  that  should  be  paid  the  said  master,  (on  the 
discharge  here  of  the  cargo  now  on  board  that  vessel,)  to 
cancel  the  agreement  entered  into  between  the  two  parties.  1 
beg  to  say,  that  I  have  perused  the  charter  party — have  also 
heard  the  explanations  made  by  both  parties,  and  now  give  it 
as  my  opinion,  that  Mr.  P.  should  pay  the  said  Capt.  Mattison 
$1,200,  in  full  of  all  demands.  ALEX.  ROGERS. 

Monte  Video,  1st  April  1839." 

"In  the  case  of  the  brig  E.  D.,  chartered,  &c.  My  opinion 
is,  that  in  consideration  of  Captain  Mattison  having  fulfilled, 
as  far  as  in  his  power,  the  contract  entered  into,  carrying 
and  delivering  the  quantity  of  cargo  agreed  on,  to  Cape 
Corrientes,  and  having  brought  seventy-six  bales,  admitted  to 
be  one -fourth  of  a  cargo  for  the  vessel,  to  Monte  Video;  and 
further,  by  performance  of  this  part  of  the  voyage,  encountered 
the  risks  and  perils  which  the  difference  of  freight  from  Monte 
Video  to  Boston,  and  from  Monte  Video  via  Cape  Corrientes,  to 
same  port,  prove  to  be  greatest,  the  one,  at  the  time,  being 
about  two  thousand  hard  dollars,  the  vessel  is  entitled  to  one- 
half  for  her  freight.  As,  however,  the  charterer  does  not  derive 
benefit  from  the  part  of  the  voyage  performed,  to  any  thing 
near  that  proportion,  rny  idea  is,  that  the  third  party  causing 
the  non-fulfilment  of  charter,  should  be  called  on  and  made 
accountable  for  the  difference,  and  suggest  the  following  mode 


420  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner— 1844. 

of  settlement:  that  the  charterer  pay  to  the  vessel  $1,200  in 
full,  for  the  part  of  the  voyage  actually  performed,  receiving 
the  bales  from  on  board  in  Monte  Video;  and  that  his  claim 
on  the  French  Government  for  the  balance,  say  eight  hundred 
and  fifty  hard  dollars,  if  recovered,  be  paid  over  to  Capt.  Mat- 
tison.  By  such  an  arrangement,  the  loss  sustained  would  fall 
equally  on  either  party,  which,  in  equity,  it  should;  neither 
being  culpable  for  the  want  of  performance  anjl  unlocked  for 
difficulties  that  have  occurred.  ROBT.  C.  McLEAN. 

Monte  Video,  1st  April  1839." 

The  cancellation  of  the  charter  party  of  the  1st  of  February 
1839,  was  admitted. 

The  defendant  thereupon  proved  that  John  I.  Mattison,  the 
master  of  the  brig  Eliza  .Davidson,  was  a  part  owner  of  the 
said  brig,  at  the  date  of  the  said  charter  party  of  the  1st  Febru- 
ary 1839,  and  of  said  policy  of  insurance,  and  has  so  continued 
down  to  the  present  time;  and  that  said  owners  received  from 
Alfred  Peabodyihe  sum  of  $1,200,  awarded  as  is  hereinbefore 
stated.  The  defendant  further  offered  in  evidence  the  charter 
party,  following: 

"Contract  of  affreightment  entered  into  before  me,  the  un- 
dersigned, licensed  broker,  between  Messrs.  James  Cruset  and 
John  I.  Mattison,  Captain  of  the  American  brig,  Eliza  David- 
son, Messrs.  Southgate  fy  Co.  being  her  consignees. 

Article  1st.  Mr.  James  Cruset  freights  from  her  captain,  John 
I.  Mattison,  the  American  brig  Eliza  Davidson,  to  load  with 
meat  for  Havana,  obliging  himself  to  put  on  board  from  four 
thousand  five  hundred  to  five  thousand  quintals  of  meat,  at 
most,  and  to  pay  for  freight,  $5,000,  in  gold  or  silver,  over  and 
above  the  sum  of  five  per  cent,  capa,  (a  kind  of  commission 
not  known  to  the  translator.) 

Art.  2nd.  Capt.  Mattison  allows  the  freighter  one  hundred 
and  thirty  days  for  the  loading  at  this  port  of  the  Eliza  David- 
son, and  her  discharge  of  cargo  in  Havana;  and  if,  at  the  end 
of  that  time,  any  part  of  the  cargo  should  remain  on  board, 
the  freighter  shall  pay  $25  per  day  demurrage,  for  every  day 
thereafter. 


OF  MARYLAND.  421 


The  Charleston  Ins.  &,  Trust  Co.  vs.  Corner. — 1844. 

Art.  3rd.  Capt.  Mattison  obliges  himself  to  place  his  ves- 
sel in  all  proper  condition,  sound  and  dry,  to  prosecute  the 
voyage. 

Art.  4th.  The  freighter  obliges  himself  to  provide  payment 
for  storage,  and  to  pay  for  the  straw  which  may  be  necessary 
for  the  proper  conveyance  of  the  meat. 

Art.  5th.  Capt.  Mattison  obliges  himself  to  consign  himself 
and  vessel  to  such  house  in  Havana,  as  the  freighter  may 
designate,  and  will  pay  to  his  consignees  two  and  a  half  per 
cent,  commission  for  the  collection  of  freight. 

Art.  6th.  The  time  above  designated,  will  commence  run- 
ning from  the  3rd  day  of  May,  and  will  cease  on  the  day  when 
the  freighter  shall  advise  the  captain  that  the  cargo  is  ready. 
It  will  begin  to  run  in  Havana,  from  the  day  that  the  vessel  is 
ready  to  discharge;  both  the  contracting  parlies  sign  the  above 
contract  by  common  consent,  and  bind  themselves  to  its  ful- 
filment respectively;  the  one  by  his  cargo,  the  other  by  his 
vessel,  apparel,  freight,  &c. 

(Signed,)  JAMES  CRUSET, 

JOHN  I.  MATTISON." 
"Before  me,      FRANCISCO  A.  GORNEZ,  licensed  broker. 

Monte  Video,  May  2nd  1839." 

"Note. — Twenty  of  the  days  limited  above,  for  the  loading 
and  discharge,  were  consumed  in  Monte  Video,  leaving  only 
for  the  discharge  in  Havana  sixty  days,  (60.) 

(Signed,)  FRANCISCO  A.  GORNEZ. 

JAMES  CRUSET. 
Monte  Video,  July  13th  1839." 

"The  above  is  a  correct  translation  of  the  document  referred 
to  me  for  translation.  S.  TEACKLE  WALLIS. 

15th  June  1843." 

Which  it  was  admitted  was  executed  by  the  parties  hereto. 
That  the  voyage  therein  stipulated  to  be  performed  by  the 
Eliza  Davidson,  (the  brig  mentioned  in  the  policy  of  insurance,) 
was  performed  by  him  to  Havana,  and  the  freight  of  $5,000 
earned  by  her,  and  paid  to  the  owners ;  and  that  said  voyage 
to  Havana,  was  a  shorter  voyage  than  would  have  been  that  to 


422  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner.— 1844. 

Boston,  and  on  the  way  home,  to  the  port  of  Baltimore,  of  said 
brig,  whare  she  belonged. 

The  plaintiffs  then  offered  in  evidence  the  deposition  of 
Shadrack  Hudgins:  that  he  was  mate  of  the  brig  E.  D,  on  her 
voyage  from  M.  V.  to  C.  C.,  and  from  thence  to  Boston,  to  be 
performed  under  a  charter  party.  The  voyage  commenced  in 
the  beginning  of  the  year  1839,  and  at  M.  V.  they  took  in  a 
cargo  for  Corrientes,  and  proceeded  to  Corrientes,  where  the 
cargo  was  landed,  and  they  commenced  taking  in  a  cargo  for 
Boston;  and  when  they  had  taken  in  a  part  of  the  cargo,  about 
one-fourth,  they  were  seized  by  a  French  corvette,  and  all  the 
crew  removed  to  the  corvette,  and  the  brig  taken  possession 
of  by  the  French.  The  French  did  a  great  deal  of  mischief 
to  the  said  brig;  left  all  her  boats  ashore;  broke  the  windlass; 
destroyed  the  greater  part  of  the  running  rigging;  and  the 
vessel  was  brought  as  a  prize  to  M.  V.  He  further  states, 
that  the  crew  and  vessel  were  detained  about  ten  days  in  M. 
V.,  before  they  were  released  ;  as  he  understood  at  the  time, 
C.  was  declared  in  a  state  of  blockade,  and  said  brig  was 
prohibited  from  going  there.  After  their  release,  they  remained 
in  M.  V.  upwards  of  forty  days,  when  the  said  vessel  got  a 
freight  for  Havana.  In  consequence  of  this  declaration  of 
blockade,  the  voyage  to  Boston  was  broken  up.  The  blockade 
continued  for  two  years  afterwards. 

Cross  examined.  Witness  understood  that  the  freight  for 
Havana,  amounted  to  $4,000.  At  M.  V.,  the  windlass  was 
mended ;  did  not  get  new  sails ;  had  a  carpenter  employed 
about  a  week  mending  the  windlass,  and  doing  some  caulking; 
the  caulking  was  not  occasioned  by  the  blockade.  They  did 
not  know  that  B.  was  about  to  be  blockaded  before  they  went 
there,  on  the  contrary,  all  the  consuls  there,  except  the  French 
consul,  said  that  it  was  not  in  a  state  of  blockade.  The  French 
were,  at  that  time,  blockading  Buenos  Jlyres.  No  application 
was  made  by  him,  or  by  the  captain,  to  his  knowledge,  to  the 
French  consul,  to  ascertain  the  condition  of  the  war,  or  whether 
Corrientes  was  blockaded.  He  knew  that  the  cargo  they  had 
in  had  come  from  Buenos  ./lyres. 


OF  MARYLAND.  423 


The  Charleston  Ins.  &,  Trust  Co.  vs.  Corner. — 1844. 

Examined  in  chief.  Deponent  states  that  the  French  were 
blockading  the  river  Plate;  that  Corrientes  is  not  in  the  river 
Plate,  but  60  miles  south  of  Cape  Antonio;  that  in  unlading 
the  outward  cargo,  and  taking  in  a  part,  of  the  inward  cargo, 
they  were  occupied  nineteen  or  twenty  days,  during  all  which 
time,  they  never  saw  a  French  vessel  of  any  kind  ;  that  they 
knew  that  the  French  were  carrying  on  a  general  war  with 
Buenos  Jlyres. 

Cross  examined.  Deponent  heard  from  Mr.  Corner  or  Mr. 
Glenn,  that  the  whole  matter  had  been  compromised. 

Examined  in  chief.  Deponent  states  that  one  part  of  the 
French  fleet  were  above  Monte  Video,  and  the  other  off  Monte 
Video;  they  saw  no  vessels  below  Monte  Video. 

Whereupon,  the  plaintiffs  prayed  the  court  to  instruct  the 
jury  as  follows  : 

1st.  That  the  true  construction  of  the  policy  of  insurance, 
given  in  evidence  in  this  case,  is,  that  the  defendants  assured 
the  risk  of  loss  arising  from  restraints  and  detainments  of  all 
kings,  princes  or  people,  and  were  of  course  liable  for  the  loss 
arising  from  the  capture  and  detention  of  the  brig  by  the  French 
vessel  of  war,  "the  Perle." 

2nd.  The  true  construction  of  the  charter  party  of  Peabody, 
also  offered  in  evidence,  is,  that  no  freight  was  to  be  due  by 
the  charterer,  unless  the  voyage  undertaken  was  performed, 
and  the  goods  safely  delivered  at  the  termination  of  the  voyage 
at  Boston,  and  this,  notwithstanding  it  was  prevented  by  the 
said  capture  and  detention  of  the  Eliza  Davidson,  by  the  said 
French  vessel  of  war. 

3rd.  That  as  the  Cape  Corrientes  was  blockaded  on  and  af- 
ter the  Eliza  Davidson  was  released  at  Monte  Video  from  the 
capture  and  detention  of  said  vessel  of  war,  it  was  impossible 
for  the  vessel  to  earn  her  freight  under  said  charter  party,  and 
that  therefore  the  policy  of  insurance  in  question  was  forfeited, 
and  the  plaintiffs  are  entitled  to  recover. 

And  the  defendants  prayed  the  court  to  instruct  the  jury  as 
follows : 


424  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  va.  Corner.— 1844. 

1st.  The  defendants  in  the  above  cause,  prays  the  court  to 
instruct  the  jury,  that  if  they  shall  find  from  the  evidence,  that 
on  the  1st  day  of  January  1839,  the  defendant  executed  the 
policy  of  insurance  offered  in  evidence  in  this  cause,  that  on 
the  1st  day  of  February  1839,  the  charter  party  offered  in  evi- 
dence, was  entered  into  by  Capt.  M,,  the  master  of  the  E.  D.; 
that  in  pursuance  thereof,  the  said  brig  proceeded  to  C.  C*., 
and  there  discharged  her  outward  cargo;  that  whilst  engaged 
in  taking  on  board  the  lading  stipulated  by  the  charterer  to  be 
furnished  for  transportation  to  B.,  said  brig  was  seized  by  the 
French  brig  of  war,  the  Perle,  and  by  her  held  from  the  16th 
of  March  1839,  till  the  25th  day  of  the  same  month,  when  said 
brig  E.  D.,  was  surrendered  to  Capt.  M.,  who,  with  his  crew, 
took  possession  of  the  same;  that  at  the  time  of  her  seizure 
by  the  French,  brig,  said  brig,  E.  D.,  had  on  board  of  her  one- 
fourth  of  the  cargo  stipulated  by  the  charterer,  to  be  furnished 
for  transportation  to  B.;  that  being  in  that  condition,  the  mas- 
ter of  said  brig  demanded  of  the  charterer,  (who  insisted  upon 
breaking  up  the  contemplated  voyage,  upon  the  ground,  that 
the  port  of  C.  C.  was  declared  by  the  French,  to  be  in  a  state  of 
blockade,)  the  full  amount  of  the  freight  stipulated  for  in  the 
charter  party  of  the  1st  of  February,  1839;  that  said  charterer 
refusing  to  pay  the  same,  the  matter  was  submitted  by  the  said 
master  and  the  charterer  to  arbitration  ;  and  that  the  arbitra- 
tors chosen  by  the  parties,  awarded  $1.200  to  be  paid  by  the 
charterer,  as  a  compensation  for  what  had  been  done  under 
said  charter  party,  which  was  accepted  by  said  M.;  and  that 
said  charter  party,  by  the  mutual  consent  of  the  said  master 
and  the  charterer,  was  thereupon  cancelled;  that  said  brig, 
E.  D.,  afterwards,  to  wit,  on  the  2nd  May  1838,  was  chartered 
for  a  voyage  to  Havana,  at  and  for  the  freight  of  $5,000,  as 
shown  by  the  charter  party  offered  in  evidence,  and  that  said 
brig  performed  said  voyage,  which  was  a  shorter  voyage  than 
that  from  M.  V.  or  C.  C.  to  B.,  and  received  the  freight  stipu- 
lated to  be  paid  them  ;  and  shall  further  find  that  said  master, 
Mattison,  at  the  time  said  policy  of  insurance  was  effected, 
and  during  the  whole  period  covered  by  the  transactions  here- 


OF  MARYLAND.  425 


The  Charleston  Ins.  <k  Trust  Co.  vs.  Corner.— 1844. 

inbefore  recited,  was  a  part  owner  of  said  brig,  Eliza  Davidson, 
and  still  is  such  part  owner,  that  then  the  plaintiffs  are  not 
entitled  to  recover  in  this  action,  on  the  first  count  in  their 
declaration. 

1st.  Because  no  loss  of  freight  was  sustained  by  the  plain- 
tiffs, upon  the  voyage,  covered  by  the  policy  of  insurance, 
within  the  terms  of  said  policy,  or  the  perils  thereby  insured 
against. 

2nd.  Because  upon  the  true  interpretation  of  the  charter 
party,  of  the  1st  February  1839,  the  charterer,  A.  Peabody, 
was  answerable,  under  the  circumstances  above  stated,  for  the 
whole  amount  of  freight  stipulated  to  be  paid  by  A.  Peabody, 
upon  the  voyage  to  Boston,  and  that  Captain  Mattison,  one  of 
the  owners  of  said  brig  E.  D.,  having  consented  to  the  can- 
cellation of  said  charter  party,  and  thereby  discharged  the  said 
Peabody  from  his  obligation  to  fulfil  it,  has  released  the  defen- 
dant from  all  responsibility,  upon  the  policy  offered  in  evidence 
in  this  cause. 

3rd.  Because  the  reference  and  adjustment  at  M.  V.  having 
been  made,  without  the  knowledge  or  consent  of  the  defen- 
dant, and  having  been  followed  by  the  cancellation  of  that 
charter  party,  with  the  consent  of  one  of  the  assured,  M.  being 
a  part  owner  of  said  brig,  discharged  the  defendant  from  all 
liability  upon  said  policy. 

4th.  Because  under  the  circumstance  stated,  the  said  own- 
ers of  said  brig  E.  D.,  laid  a  claim  for  full  freight,  under  said 
charter  party,  and  that  having  on  board  one-fourth  of  the  home- 
ward cargo,  they  had  a  lien  on  it  for  said  freight,  and  that 
it  was  their  duty  to  have  prosecuted  their  voyage  to  2?.,  after 
the  time  limited  by  said  charter  party,  for  the  lading  of  said 
vessel,  and  that  having  relinquished  said  lien,  in  the  manner 
shown  by  the  evidence,  the  defendant  was  discharged  from  all 
liability  on  said  policy. 

5th.  Because  by  the  second  charter  party  offered  in  evidence, 
the  said  plaintiffs,  within  the  period  necessary  to  perform  the 
voyage  under  the  first,  having  carried  freight  to  a  larger  amount 
54  v.2 


426  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner. — 1844. 

than  is  claimed  in  the  present  suit,  sustained  no  damages, 
which  they  are  entitled  to  exact  in  this  suit. 

6th.  The  defendant  prayed  the  court,  further  to  instruct  the 
jury,  that  even  if  the  plaintiffs  are  entitled  to  recover  in  this 
case,  that  being  the  owners  of  but  two-thirds  of  said  vessel, 
the  E.  D.,  they  are  entitled  to  recover  but  two-thirds  of  the 
amount  due  upon  the  policy  of  insurance  declared  upon,  after 
deducting  the  sum  of  twelve  hundred  dollars,  received  from 
A.  Peabody,  notwithstanding  that  they  have  sued  for  the  whole 
amount  so  due. 

And  the  court,  (MAGRUDER,  A.  J.,)  thereupon  gave  to  the 
jury,  the  instructions  prayed  for  by  the  plaintiffs,  and  rejected 
those  prayed  for  by  the  defendant.  The  defendant  excepted 
to  the  said  opinion  of  the  court,  granting  the  prayers  of  the 
plaintiffs,  and  to  each  of  them,  and  to  the  said  opinion  reject- 
ing the  prayers  of  the  defendant,  and  to  each  of  them. 

The  Insurance  Company  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS  and  MAGRUDER,  J. 

By  Z.  COLLINS  LEE  and  NELSON  for  the  appellants,  and 
By  REVERDY  JOHNSON  for  the  appellees. 

CHAMBERS,  J.,  delivered  the  opinion  of  this  court. 

The  instructions  asked  by  the  appellee,  who  was  plaintiff 
below,  were  not  based  on  an  assumed  state  of  facts,  to  be  sub- 
mitted to  the  consideration  of  the  jury.  They  were  moved,  it 
would  seem,  in  the  confidence,  that  as  the  evidence  was 
uncontradicted,  the  jury  could  not  do  otherwise  than  find  the 
facts  accordingly. 

They  are,  in  effect,  an  assertion  by  the  court,  in  the  first  and 
second  instructions,  that  the  Eliza  Davidson  was  captured  and 
detained  by  the  Perle;  and  in  the  third  instruction,  that  Corri- 
entes  was  blockaded  on  and  after  the  ship's  release  at  Monte 
Video.  Doubtless  the  jury  would  have  found  these  facts 
according  to  the  testimony,  but  the  sufficiency  of  evidence  to 
satisfy  a  jury,  or  the  circumstance,  that  it  is  all  on  one  side, 


OF  MARYLAND.  427 


The  Charleston  Ins.  &  Trust  Co.  vs.  Corner.— 1844. 

does  not  authorise  the  court  to  direct  the  jury,  that  it  proves 
the  fact.  They  have  the  power  to  refuse  their  credit,  and  no 
action  of  the  court  should  control  the  exercise  of  their  admit- 
ted right,  to  weigh  the  credibility  of  evidence.  In  thus  incau- 
tiously expressing  their  opinion,  the  court  erred. 

The  appellants  deny  the  right  of  the  appellee,  to  recover  on 
the  state  of  facts  set  out  in  the  defendant's  first  prayer,  on 
various  grounds. 

The  first  four  reasons  assigned  in  the  record,  are  based  up- 
on the  assumption,  that  the  ship  was  entitled  to  full  freight, 
and  might  have  earned  it  by  proceeding  on  the  voyage,  with 
the  part  of  her  cargo  received,  when  she  was  seized  and 
driven  off. 

If  the  construction  given  to  the  charter  party  by  the  appel- 
lants, could  be  adopted,  this  objection  must  be  sustained. 
That  construction  is,  that  Peabody,  the  charterer,  under  the 
circumstances  which  occurred,  was  answerable  for  the  whole 
amount  of  freight,  which  would  have  been  earned  by  the  suc- 
cessful prosecution  and  termination  of  the  contemplated  voy- 
age. Was  such  the  meaning  of  the  charter?  It  is  to  be  con- 
strued as  other  contracts,  so  as  to  effect  the  design  of  the  par- 
ties, apparent  by  its  terms.  The  evidence  is,  that  about  one 
fourth  of  the  cargo  was  taken  in  at  Corrientes  ;  and  there  is  no 
allegation  of  unwillingness,  or  want  of  readiness  or  prepara- 
tion, on  the  part  of  the  charterer,  to  furnish  the  residue  of  the 
lading.  It  would,  therefore,  seem  to  require  very  explicit 
language  to  justify  the  inference,  that  in  such  a  state  of  things, 
the  charterer  intended  to  pay  full  freight.  If  it  can  be 
demanded  in  a  case  where  an  enemy's  force,  by  seizing  and 
driving  away  the  ship,  after  receiving  one  fourth  part  only  of  the 
cargo,  why  may  it  not  be  in  a  case,  where  one  hundreth  part 
only  is  taken  in  ?  If  full  freight  is  due,  where,  by  a  hostile 
force,  the  ship  is  prevented  from  loading  more  than  a  very 
minute  portion  of  the  cargo,  why  not,  if,  after  receiving  a  full 
cargo,  a  hostile  force  were  to  seize  and  carry  off  a  very  large 
proportion  of  the  cargo,  before  the  ship  had  left  her  port  of 
lading  ?  In  these  cases,  full  freight  certainly  could  not  be 


428  CASES  IN  THE  COURT  OF  APPEALS 

The  Charleston  Ins.  &  Trust  Co.  vs.  Corner — 1844. 

charged.  We  think  the  apparent  intent  of  this  charter  party, 
was,  that  "a  full  and  complete  cargo"  should  be  received  on 
board  at  Corrientes,  and  delivered  at  Boston,  to  entitle  the 
owner  to  full  freight ;  and  that  in  the  event,  which  actually 
happened,  it  was  at  least  doubtful,  whether  the  charterer 
could  have  been  compelled  to  pay  any  freight  on  the  small 
portion  of  the  cargo  received,  and  which  was  violently  seized, 
and  taken  to  Monte  Video.  We  think  the  appellants  have  no 
cause,  therefore,  to  complain  of  the  adjustment  between  Pea- 
body  and  Mattison. 

The  next  reason  assigned,  is,  that  the  freight  which  was 
actually  earned  and  received,  on  the  voyage  from  Monte  Video 
to  Havana,  or  so  much  of  it  as  would  repay  the  loss  claimed 
by  the  appellees,  ought  to  be  applied  as  salvage,  to  the  relief 
of  the  underwriters,  in  this  case. 

It  is  rightly  argued,  that  the  contract  of  insurance  is  one  of 
indemnity,  and  the  doctrine  of  salvage  for  freight,  has  been 
introduced  as  a  fair  item  in  the  adjustment  of  actual  loss.  If 
therefore,  the  particular  freight,  that  is  to  say,  the  freight  on 
the  particular  cargo  contemplated  in  the  policy,  be  not  earned, 
but  other  freight  be  earned  in  the  same  voyage,  the  insurer 
will  only  be  liable  for  the  difference,  because,  that  is  the  extent 
of  actual  loss  by  that  voyage.  No  case,  however,  has  extend- 
ed the  doctrine  so  far  as  is  now  claimed.  This  is  not  the  case 
of  a  suspended  voyage,  afterwards  pursued,  nor  is  it  the  case 
of  a  prosecution  of  the  same  voyage,  with  a  different  cargo. 
The  first  voyage  was  completely  and  finally  broken  up  and 
ended,  inconsequence  of  the  ship's  being  driven  off  from  the 
port  of  lading,  and  without  a  prospect  of  permission  to  return. 
Time  had  elapsed  sufficient  for  the  completion  of  the  original 
voyage,  when,  at  a  different  port  from  that  of  her  intended 
lading,  she  received  a  different  cargo,  for  a  different  destina- 
tion, on  which  she  earned  freight. 

There  must  be  some  limitation,  in  regard  to  time,  as  well  as 
distinction,  in  the  application  of  this  doctrine.  It  cannot  be 
required,  that  a  ship  shall  remain,  year  after  year,  awaiting  the 
restoration  of  peace,  or  removal  of  an  embargo,  so  as  to  allow 


OF  MARYLAND.  429 


The  Charleston  Ins.  &  Trust  Co.  vs.  Corner.— 1844. 

her  to  return  to  her  original  port  of  lading;  or  to  remain,  for 
any  indefinite  period,  waiting  for  a  cargo  to  her  port  of  desti- 
nation. The  inconvenience,  not  to  say  ruinous  consequences 
of  such  a  doctrine,  are  too  manifest  to  require  detail.  In  like 
manner,  it  would  be  quite  impossible  to  maintain,  on  princi- 
ples of  policy,  or  by  authority,  that  the  first  subsequent  voy- 
age, whatsoever  might  be  the  port  of  lading  or  of  destination, 
must  be  made  subject  to  this  claim  for  salvage,  on  the  freight 
of  the  interrupted  voyage. 

Great  difficulty  may  be  found  in  ascertaining  the  precise  lim- 
its, within  which  the  doctrine  should  be  applied ;  but  we  do 
not  think,  that  any  adjudged  case  will  authorise  us  to  include 
this  within  its  letter  or  spirit. 

The  fifth  reason  is  subject  to  the  additional  exception, 
noticed  in  considering  the  prayers  ot  the  appellees.  The  time 
in  which  either  of  the  voyages  alluded  to,  should  be  performed, 
is  a  question  of  fact,  and  not  to  be  assumed  and  asserted  by 
the  court. 

The  last  objection  stated  in  the  record,  respects  the  right  of 
the  plaintiffs  below,  to  recover  more  than  the  proportion,  in 
which  they  were  owners.  This,  we  think,  was  rightly  aban- 
doned, as  altogether  untenable.  See  Phil,  on  his.  593,  and 
the  numerous  cases  there  cited. 

The  result  is,  we  concur  with  the  court  below,  in  their  se- 
veral opinions  on  the  instructions  asked  for  by  the  appellants 
below,  but  differ  from  that  court,  in  respect  to  the  opinions 
expressed  on  the  prayers  of  the  appellees,  the  plaintiffs  below. 

JUDGMENT  REVERSED  AND  PROCEDENDO  ORDERED. 


430  CASES  IN  THE  COURT  OF  APPEALS 


Randall  vs.  Glenn.— 1844. 


BEALE  RANDALL  vs.   JOHN  GLENN. — December  1844. 

Where  the  plaintiff's  demand  is  set  forth  in  a  general  count,  as  for  money  lent, 
&c.,  the  defendant  may,  at  any  time,  before  he  has  pleaded  to  the  merits, 
call  on  the  plaintiff  to  exhibit  the  particulars  of  his  claim. 

After  pleading  to  the  merits,  it  seems  to  be  too  late  to  object  to  the  want  of  a 
statement  of  the  particulars  of  the  plaintiff's  demand,  or  that  the  same  is 
defective. 

At  the  term  to  which  an  action  was  brought,  the  defendant  demanded  a  bill 
of  particulars,  which  the  plaintiff  furnished ;  several  terms  afterwards,  the 
defendant  pleaded  the  general  issue ;  at  the  next  term,  when  the  cause  was 
called  for  trial,  the  defendant  excepted  to  the  sufficiency  of  the  statement. 
This  objection  came  too  late. 

The  motion,  to  direct  an  amendment  of  a  bill  of  particulars,  filed  in  due  time, 
made  after  plea,  pleaded  to  the  merits,  at  the  trial  term,  is  addressed  to  the 
sound  discretion  of  the  court ;  and  therefore  is  one  from  which  an  appeal 
does  not  lie,  any  more  than  it  will  on  a  refusal  to  grant  a  new  trial. 

Where  parties  submit  matters  in  controversy,  for  the  purpose  of  a  final  deter- 
mination, and  the  arbitrators  make  an  award,  the  original  contract  or  cause 
of  action  is  merged  by  the  submission  and  award  ;  and  there  is  no  distinc- 
tion, in  this  respect,  between  submissions  by  parol,  and  by  bond. 

There  is  a  distinction  between  a  submission  by  parties  to  the  judgment  of  two 
or  more  individuals  who  are  to  decide  the  controversy,  and  a  reference  of  a 
collateral,  incidental  matter  of  appraisement,  or  calculation,  or  the  submis- 
sion of  a  particular  question,  forming  only  a  link  in  the  chain  of  evidence, 
not  calculated  to  put  an  end  to  controversy. 

The  recital  in  a  mortgage  executed  and  delivered  by  R.  to  <?.,  that  he  stands 
indebted  to  G.  in  a  large  sum  of  money,  for  advances,  the  amount  of  which 
is  to  be  ascertained  upon  examination  of  their  accounts  by  J.  and  M.,  mu- 
tually appointed  by  R.  and  G.,  for  that  purpose,  is  a  reference  of  a  mere 
matter  of  calculation,  and  ascertainment  as  to  the  amount  of  money  ad. 
vanced;  an  ascertainment  in  conformity  to  such  recital  does  not  merge  the 
original  contract. 

An  ascertainment  of  the  amount  due,  under  such  circumstances,  is  compe- 
tent evidence,  in  an  action  of  debt  brought  by  G.  against  R.,  for  money 
lent,  advanced,  had,  and  received,  under  the  plea  of  nil  debel,  as  an  admis- 
sion of  the  defendant  of  the  amount  due  the  plaintiff. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  debt,  commenced  on  the  29th  April 
1841,  by  the  appellee  against  the  appellant. 

The  writ  was  for  $25,800,  in  the  debet  and  detinet,  and  the 
declaration  complained,  for  that  whereas  the  said  defendant, 


OF  MARYLAND.  431 


Randall  vs.  Glenn.— 1844. 


on  the  26th  April  1841,  at  Baltimore,  to  wit,  at  the  county 
aforesaid,  was  indebted  to  the  said  plaintiff,  in  the  sum  of 
$18,120.60,  for  so  much  money,  before  that  time  lent  and 
advanced,  by  the  said  plaintiff  to  the  said  defendant,  at  his 
special  instance  and  request;  to  be  paid  by  the  said  defen- 
dant to  the  said  plaintiff,  when  he,  the  said  defendant,  should 
be  thereto  afterwards  requested.  Whereby,  and  by  reason  of 
the  said  last  mentioned  sum  of  money,  being  and  remaining 
wholly  unpaid,  an  action  hath  accrued  to  the  said  plaintiff,  to 
demand  and  have,  of  and  from  the  said  defendant,  the  sura  of 
$18,120.60,  parcel  of  the  said  sum,  above  demanded.  And 
whereas  also,  afterwards,  to  wit,  on  the  day  and  year  last 
aforesaid,  to  wit,  at  the  county  aforesaid,  the  said  defendant 
was  indebted  to  the  said  plaintiff,  in  a  certain  other  sum  of 
money,  to  wit,  the  sum  of  $7,679.40,  for  so  much  money,  be- 
fore that  time  had  and  received  by  the  said  defendant,  to  the 
use  of  the  said  plaintiff,  and  to  be  paid  by  the  said  defendant 
to  the  said  plaintiff,  when  he,  the  said  defendant,  should  be 
thereunto  requested.  Whereby,  and  by  reason  of  the  said  last 
mentioned  sum  of  money,  being  and  remaining  wholly  unpaid, 
an  action  hath  accrued  to  the  said  plaintiff,  to  demand  and 
have,  of  and  from  the  said  defendant,  the  said  last  mentioned 
sum  of  $7,679.40,  other  parcel  of  the  said  sum,  above  de- 
manded. Yet  the  said  defendant,  although  often  requested  so 
to  do,  hath  not,  as  yet,  paid  the  said  sum  of  $25,800,  above 
demanded,  or  any  part  thereof  to  the  said  plaintiff.  But  he,  to 
do  this,  hath  wholly  refused,  and  still  doth  refuse,  to  the  dam- 
age of  the  said  plaintiff,  in  the  sum  of  seven  thousand  six 
hundred  and  seventy-nine  dollars  and  forty  cents,  and  there- 
fore, &c. 

At  the  return  term  of  the  writ,  the  said  Beale  Randall  de- 
manded of  the  plaintiff,  a  list  of  particulars  of  his  claim.  It 
was  ordered  by  the  court,  on  motion  of  the  said  Beale 
Randall,  that  the  said  John  Glenn  do  deliver  to  the  said  Beale 
Randall's  attorneys,  or  file  in  court  here,  the  particulars  of  the 
claims  for  which  this  suit  is  brought,  and  in  the  meantime,  that 
all  proceedings  in  this  case  be  staid.  The  plaintiff  thereupon 
filed  in  court,  the  following  bill  of  particulars,  to  wit: 


432              CASES  IN  THE  COURT  OF  APPEALS 
Randall  vs.  Glenn 1844. 

"John  Glenn  vs.  Beale  Randall,  in  Baltimore  county  court. 
Plaintiff's  bill  of  particulars.  For  monies  advanced  by  the 
said  John  Glenn  to  the  said  Beale  Randall,  at  his  instance  and 
request,  at  various  times,  up  to  the  16th  May  1834,  amount- 
ing to  $18,120.60.  Interest  on  the  same,  from  16lh  May 
1834,  till  paid.  J.  MASON  CAMPBELL,  plff's  att'y. 

Which  said  bill  was  endorsed,  to  wit:  "service  copy  admit- 
ted 18th  May  1841.  JAS.  M.  BUCHANAN,  att'y  for  deft." 

The  defendant  then  pleaded,  that  he  does  not  owe  the  said 
plaintiff,  the  said  sum  of  money  above  demanded,  or  any  part 
thereof,  &c.,  and  of  this,  he  puts  himself  upon  the  country,  &c. 

Upon  this  issue,  the  jury  awarded  the  plaintiff  the  sum  of 
$22,534.62,  and  judgment  was  accordingly  entered  against 
the  said  Beale  Randall,  on  the  16th  December  1842. 

IST  EXCEPTION.  When  this  case  was  called  for  trial,  at  Sep- 
tember term  1842,  the  defendant  moved  the  court,  to  stay  all 
proceedings  therein,  because  the  plaintiff  had  not  complied 
with  the  demand  made  by  defendant,  on  the  7th  May  1841,  of 
the  particulars  of  the  plaintiff's  claim,  by  his  paper  filed  as 
such  bill  of  particulars,  and  served  on  the  defendant  on  18th 
May  1841,  which  motion  the  court,  (PURVIANCE,  A.  J.,)  over- 
ruled, being  of  opinion,  that  the  defendant  has  waived  his 
right,  now  to  object  to  the  paper  filed  by  the  plaintiff,  as  the 
particulars  of  the  claim,  by  not  taking  exception  thereto  before 
the  time  of  trial,  and  pleading  to  the  nor.,  after  the  filing  of 
such  paper,  as  a  bill  of  particulars,  to  wit,  on  the  30th  August 
1841.  The  defendant  excepted. 

2ND  EXCEPTION.  The  plaintiff  to  support  the  issue  on  his 
part,  offered  to  read  in  evidence  to  the  jury,  a  paper  writing, 
purporting  to  be  an  agreement,  to  submit  to  the  ascertainment 
of  R.  Johnson  and  /.  W.  McCulloh,  Esqs.,  the  amount  of 
money  due  by  the  defendant  to  the  plaintiff,  lor  advances,  as 
therein  set  forth,  according  to  the  language  of  said  paper,  (it 
being  admitted,  that  said,  paper  writing  was  signed  and  deliv- 
ered by  the  defendant  to  said  Glenn,  as  such  submission  on 
his,  defendant's  part,  and  that  said  Glenn  agreed  to  such  sub- 
mission, and  it  was  made  accordingly.)  And  the  plaintiff  fur- 


OF  MARYLAND.  433 

Randall  vs.  Glenn.— 1844. 

ther  offered  in  evidence  to  the  jury,  a  paper  writing,  admitted 
to  have  been  signed  by  the  said  R.  Johnson  and  J.  W.  McCul- 
loh,  Esqs.y  as  of  the  date  it  purports  to  have  been  signed, 
purporting  to  ascertain  the  amount  so  due;  and  it  was  admit- 
ted, that  the  defendant  and  plaintiff  had  notice  of  the  meetings 
of  said  referees,  and  by  themselves,  or  agents,  attended  said 
meetings,  and  admitted  notice  of  the  said  ascertainment,  by 
said  paper  writing.  The  defendant  then  objected  to  the  adrnis- 
sibility  of  said  paper  writings  in  evidence,  under  the  pleadings 
in  this  cause. 

1.  Because  said  paper  writings  were,  in  point  of  law,  a  sub- 
mission to  arbitration,  and  an  award;  and  the  said  reference 
and  award  are  not  declared  upon  in  this  case. 

2.  Because  the  said  paper  writings,  and  other  testimony  and 
admissions  above  mentioned,  are  not  evidence,  under  ike  first 
count  in  the  nar. 

3.  Because  the  paper  writings,  and  other  testimony  and  ad- 
missions above  mentioned,  are  not  evidence,  under  the  second 
count  in  the  nar. 

4.  Because  the  said  agreement  to  refer,  and  the  said  ascer- 
tainment, constitute  no  cause  of  action  for  the  plaintiff  against 
the  defendant,  and  contain  no  promise  or  agreement  on  the 
part  of  the  defendant,  to  pay  such  amount,  or  any  amount  to 
the  plaintiff,  but  only  a  pledge  of  certain  funds,  to  the  dis- 
charge of  such  amount,  as  might  be  so  ascertained.     Each 
and  every  of  which  said  objections,  were  over-ruled  by  the 
court,  and  the  court  permitted  the  said  papers  to  be  read  in 
evidence  to  the  jury,  by  the  plaintiff,  as  evidence,  under  the 
first  count  in  the  ?mr,  of  an  ascertainment  and  admission  of 

the  amount  due  by  the  defendant  to  the  plaintiff,  for  advances 
made,  as  set  forth  in  the  nar,  and  said  papers.  The  defendant 
excepted  to  the  said  refusal,  and  to  the  said  direction. 

The  verdict  and  judgment  being  against  him,  he  appealed 
to  this  court. 

The  record  was  amended  in  this  court,  by  consent,  and  the 
following  documents  referred  to  in  the  2nd  exception,  admit- 
ted, as  having  been  given  in  proof  in  the  county  court. 
55        v.2 


434  CASES  IN  THE  COURT  OF  APPEALS 

Randall  vs.  Glenn.— 1844. 

"Whereas,  Beale  Randall,  of  the  city  of  Baltimore,  stands 
indebted  unto  John  Glenn,  of  the  same  place,  in  a  large  sum 
of  money  for  advances,  the  amount  of  which,  is  hereby  to  be 
ascertained  upon  an  examination  of  their  accounts  by  Reverdy 
Johnson  and  James  W.  McCulloh,  Esqs.,  mutually  appointed 
by  the  said  Beale  Randall  and  John  Glenn,  for  that  purpose. 

And,  whereas,  the  said  Glenn  hath  come  under  the  following 
responsibilities  for  account  of  the  said  Randall,  to  wit,  at  the 
Marine  Bank  of  Baltimore,  for  the  sum  of  seven  thousand 
dollars,  ($7,000,)  &c.  The  advances  made  by  the  said  Glenn, 
for  account  of  the  said  Randall,  as  claimed  by  the  said  Glenn, 
amounted,  on  the  sixth  day  of  April  last,  to  $18,126.60,  and 
for  the  purpose  of  securing,  indemnifying,  and  saving  harm- 
less, the  said  Glenn  from  all  loss  and  damage  on  account  of 
the  premises,  the  said  Beale  Randall  hath  agreed  to  execute 
these  presents.  Now  this  instrument  of  writing  witnesseth, 
that  the  said  Beale  Randall,  for  and  in  consideration  of  the 
premises,  and  of  the  sum  of  five  dollars,  current  money,  to 
him  in  hand  paid  by  the  said  John  Glenn,  before,  &c.,  hath 
granted,  bargained  and  sold,  assigned,  £c.,  and  by  these  pre- 
sents doth  grant,  &c.  To  have  and  to  hold  the  same,  and 
every  part  and  parcel  thereof,  unto  the  said  John  Glenn,  his 
heirs,  executors,  administrators  and  assigns  forever,  in  special 
trust  and  confidence,  nevertheless,  that  is  to  say,  in  trust  to 
retire,  and  pay  all  and  singular,  the  responsibilities  herein  be- 
fore mentioned;  then  to  pay  all  such  sums  of  money  as  the 
said  Reverdy  Johnson  and  James  W.  McCulloh,  Esqs.,  may 
ascertain  and  determine,  the  said  Glenn  has  advanced  for  the 
said  Randall,  and  the  balance,  if  any,  to  pay  over  to  the  said 
Randall  or  his  order." 

This  instrument  dated  16th  May  1834,  was  duly  acknow- 
ledged, &c.,  on  the  day  of  its  date. 

"In  pursuance  of  the  authority  given  us  by  the  within  mort- 
gage to  ascertain  the  advances,  in  money,  made  by  the  within 
named  John  Glenn,  to  the  within  named  Beale  Randall,  up  to 
the  date  of  said  mortgage,  and  after  having  given  to  said  Glenn 
and  Randall  notice  of  the  times  and  places  of  our  meetings., 


OF  MARYLAND.  436 


Randall  vs.  Glonn.— 1844. 


for  said  purpose,  and  having  fully  heard  and  considered  all  the 
evidence  and  representations  they  had  to  offer  us  in  the  mat- 
ter, we  do  award,  determine  and  ascertain,  that  said  John  Glenn 
had,  on  the  day  of  the  date  of  said  mortgage,  that  is  to  say, 
on  the  16th  day  of  May  1834,  advanced,  in  money,  to  said 
Randall,  the  sum  of  eighteen  thousand,  one  hundred  and 
twenty  dollars,  and  sixty  cents,  ($18,120.60,)  over  and  be- 
yond the  amount  of  the  three  notes,  specially  mentioned  in 
said  mortgage.  And  we  do  further  award  and  determine,  that 
said  sum  of  $18,120.60,  exclusive  of  said  notes,  is  now  due 
by  said  Randall  to  said  Glenn,  with  interest  on  the  same,  from 
the  6th  day  of  April,  in  the  year  1834.  As  witness  our  hands, 
this  12th  day  of  May,  in  the  year  1835. 

Signed,  REVERDY  JOHNSON, 

JAMES  W.  McCuLLOH. 

Notes  mentioned  $7,000,  at  Marine  Bank,  &c." 

The  defendant  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  SPENCE  and 
MAGRUDER,  J. 

By  MURRAY  and  T.  P.  SCOTT  for  the  appellant,  and 
By  GLENN  and  CAMPBELL  for  the  appellee. 

SPENCE,  J.,  delivered  the  opinion  of  this  court. 

The  declaration  in  this  case,  has  a  count  for  money  lent  and 
advanced,  and  money  had  and  received.  The  suit  was  brought 
to  the  May  term  1841,  of  Baltimore  county  court.  At  May 
term  1841,  of  the  same  court,  the  defendant  demanded  a  list, 
or  bill  of  particulars,  and  the  court  passed  an  order  upon  the 
the  plaintiff,  that  he  deliver  to  the  said  Beale  Randall's  attor- 
neys, or  file  in  the  court,  the  particulars  of  the  claim  for  which 
the  suit  was  brought;  and  in  the  meantime,  that  all  proceed- 
ings be  staid.  And  thereupon,  the  said  Glenn,  by  his  attor- 
ney, filed  in  court,  the  following  bill  of  particulars,  to  wit: 

"In  Baltimore  county  court,  plaintiff's  bill  of  particulars,  for 
money  advanced  by  the  said  John  Glenn  to  the  said  Beale 
Randall,  at  his  instance  and  request,  at  various  times,  up  to 


436  CASES  IN  THE  COURT  OF  APPEALS 

Randall  vs.  Glenn.— 1844. 

16th  May  1834,  amounting  to  $18,120.60."  "Interest  on  the 
same,  from  16th  May  1834,  until  paid,"  which  said  bill  is  thus 
endorsed,  to  wit:  "service  copy  admitted  18th  May  1841." 

After  the  service  of  this  bill  of  particulars  was  thus  admit- 
ted, the  defendant  pleaded  nil  debet;  the  plaintiff  joined  issue, 
and  the  cause  was  continued  from  term  to  term,  until  Sep- 
tember term  1842.  The  first  exception  in  this  case,  raises 
the  first  question  to  be  decided  by  this  court;  and  inasmuch 
as  the  defendant's  motion  fully  presents  the  question,  we  insert 
it  as  follows: 

"When  this  case  was  called  for  trial,  the  defendant,  by  his 
attorney,  moved  the  court  to  stay  all  proceedings  in  the  cause, 
because  the  plaintiff  had  not  complied  with  the  demand  made 
by  the  defendant,  on  the  7th  of  May  1841,  of  the  bill  of  particu- 
lars of  the  plaintiff's  claim,  by  his  paper  filed  as  such  particu- 
lars, and  served  on  the  defendant  on  the  18th  of  May  1841, 
which  motion  the  court  over-ruled." 

The  law  seems  well  settled  upon  authority,  that  in  actions  of 
this  class,  the  defendant  may  at  any  time  before  he  has  pleaded 
to  the  merits,  if  the  declaration  do  not  disclose  the  particulars 
of  the  plaintiff's  demand,  call  on  plaintiff  to  exhibit  them. 
Vide  Mercer  vs.  Seyer,  3  Jno.  Rep.  248.  But  it  seems  lo  be 
too  late,  after  pleading  to  the  merits,  to  object  to  the  want  of 
such  a  statement,  or  that  the  same  is  defective.  Long  vs. 
Kinard,  Harper  Censti.,  C.  of  S.  Carolina  47. 

In  the  case  now  under  consideration,  after  the  defendant 
had  service  of  the  bill,  he  filed  his  plea,  and  issue  was  joined, 
and  the  cause  continued  until  September  term  1842;  and 
not  before  the  cause  was  called  for  trial,  did  the  defendant 
make  the  suggestion,  that  the  plaintiff  had  not  complied  with 
the  demand  made  of  the  particulars  of  his  claim.  This  ap- 
plication of  the  defendant,  at  this  stage  of  the  case,  after  issue 
joined,  and  when  the  cause  was  called  up  for  trial,  for  a  con- 
tinuance of  the  cause,  might  be  considered  as  addressed  to 
the  discretion  of  the  court,  and  we  concur  with  the  opinion  of 
Gibbs,  C.  /.,  in  Lovelock  vs.  CheveleyB,  Eng.  Com.  Law  Rep. 
185,  where  he  says,  "bills  of  particulars  undoubtedly  facili- 


OF  MARYLAND.  437 


Randall  »s.  Glenn.— 1844. 


tate  the  trial  of  a  cause,  but  they  must  not  be  permitted  to  ob- 
struct the  justice  of  it.  The  party  who  objects  to  particulars, 
as  insufficient,  must  make  his  complaint  at  the  proper  time. 
He  cannot  wait  till  the  trial  of  the  cause,  and  then  raise  an 
objection,  which,  if  earlier  made,  might  have  been  disposed  of. 
In  this  case,  if  the  plaintiff  had  not  time  to  tax  the  bill,  he 
might  have  applied  to  the  court,  but  by  keeping  the  particu- 
lars, he  has  waived  his  objection."  So  in  the  case  under  con- 
sideration, if  the  defendant  deemed  the  plaintiff's  bill  of  par- 
ticulars insufficient,  he  should  have  made  his  motion  earlier, 
when  the  defect,  if  there  were  any,  might  have  been  remedied, 
and  the  delay  of  the  trial  of  the  cause  avoided;  whereas  by 
his  delay,  he  has  rendered  himself  obnoxious  to  the  charge  of 
having  waived  his  objections.  This  was  a  matter  in  the  sound 
discretion  of  the  court,  under  all  the  circumstances  of  the  case, 
and  therefore,  one  from  which  an  appeal  does  not  lie,  any 
more  than  it  will  on  a  refusal  to  grant  a  new  trial. 

At  the  trial  of  this  cause,  the  plaintiff  offered  in  evi- 
dence to  the  jury,  a  certain  paper  writing,  purporting  to  be  a 
mortgage  from  Beale  Randall  to  John  Glenn,  which  contained 
the  following  recital: 

"Whereas  Beale  Randall,  of  the  city  of  Baltimore,  stands 
indebted  unto  John  Glenn,  of  the  same  place,  in  a  large  sum 
of  money  for  advances,  the  amount  of  which  is  to  be  hereby 
ascertained,  upon  an  examination  of  their  accounts,  by  Reverdy 
Johnson  and  James  W.  McCulloh,  Esqs.,  mutually  appointed 
by  the  said  Beale  Randall  and  John  Glenn,  for  that  purpose," 
it  being  admitted,  that  said  paper  writing  was  signed  and  de- 
livered by  the  said  defendant,  to  said  Glenn,  as  such  submis- 
sion on  his,  defendant's,  part,  and  that  said  Glenn  agreed  to 
such  submission,  and  it  was  made  accordingly.  And  the 
plaintiff  further  offered  in  evidence  to  the  jury,  a  paper  writing, 
admitted  to  have  been  signed  by  the  said  R.  Johnson  and 
James  W.  McCulloh,  Esqs.,  as  of  the  date  it  purports  to 
have  been  signed,  purporting  to  ascertain  the  amount  so  due. 
It  was  also  admitted,  that  the  parties  had  notice  of  the  meet- 
ing of  the  referees,  and  by  themselves,  or  agents,  attended 


438  CASES  IN  THE  COURT  OF  APPEALS 

Randall  vs.  Glenn  —1844. 

said  meeting,  and  admitted  notice  of  the  said  ascertainment, 
by  said  paper  writing. 

The  defendant  then  objected  to  the  adraissibility  of  said 
paper  writing  in  evidence,  under  the  pleadings  in  this  cause; 
which  objection  the  court  over-ruled,  and  permitted  the  evi- 
dence to  go  to  the  jury. 

Our  next  enquiry  is,  therefore,  whether  there  was  error  in 
this  act  of  the  court? 

The  ground  of  objection  to  the  admissibility  of  this  evi- 
dence was,  first,  that  there  was  no  count  in  the  declaration 
under  which  it  was  admissible;  that  in  order  to  let  it  in,  there 
should  have  been  a  count  on  the  award,  or  an  account  stated; 
that  the  original  contract  was  merged  in  the  reference  and 
award. 

The  doctrine  is  too  well  settled  at  this  day,  to  admit  a  doubt, 
that  where  parties  submit  matters  in  controversy,  for  the  pur- 
pose of  a  final  determination,  and  the  arbitrators  make  an 
award,  in  such  a  case,  that  the  original  contract,  or  cause  of 
action,  is  merged  by  the  submission  and  award.  It  is  true, 
that  in  England,  the  courts  have,  and  do  profess  to  make  a 
distinction  between  submissions  by  parol,  and  by  bond;  but 
the  American  cases,  so  far  as  we  have  been  able  to  ascertain, 
do  not  profess  to  hold  this  distinction. 

The  mortgage  in  this  case  recites,  that  whereas  Beale  Ran- 
dall, of  the  city  of  Baltimore,  stands  indebted  to  John  Glenn, 
of  the  same  place,  in  a  large  sum  of  money  for  advances,  the 
amount  of  which  is  hereby  to  be  ascertained,  upon  an  exami- 
nation of  their  accounts,  by  Reverdy  Johnson  and  James  W. 
McCulloh,  Esqs.,  mutually  appointed,  &c. 

There  is  a  distinction  between  a  submission  by  parties  of 
matters  in  controversy,  to  the  judgment  of  two  or  more  indi- 
viduals, who  are  to  decide  the  controversy,  and  a  reference  of 
a  collateral,  incidental  matter  of  appraisement,  or  calculation, 
or  the  submission  of  a  particular  question,  forming  only  a  link 
in  the  chain  of  evidence,  not  calculated  to  put  an  end  to  con- 
troversy. Vide  4  vol.  Cowens,  Philip's  1,  note  240,  p.  149. 
Garr  vs.  Gomez,  9  Wend,  649. 


OF  MARYLAND.  439 


Richardson  vs.  the  State,  use  of  Rawlings. — 1845. 

We  hold,  that  the  reference  in  this  case,  was  a  mere  matter 
of  calculation  and  ascertainment,  as  to  the  amount  of  money 
which  had  been  advanced  by  Glenn  to  Randall,  which  the 
mortgage  was  intended  to  secure;  that  the  reference  and  ascer- 
tainment did  not  merge  the  original  contract ;  and  that  as  an 
admission  of  the  defendant,  it  was  admissible  in  evidence, 
under  the  pleadings  in  this  cause,  of  the  amount  due  the  plain- 
tiff. Keen  vs.  Butshore,  vide  1  Espi.  193.  And  King  vs. 
Butshore,  1  Peakes,  JV.  P.  C.  227. 

JUDGMENT  AFFIRMED. 


CHARLES  RICHARDSON,  A.  D.  B.  N.  OF  ROBERT  R.  RICHARD- 
SON, vs.  THE  STATE  OF  MARYLAND,  USE  OF  THOMAS 
RAWLINGS. — June  1845. 

In  an  action  on  a  bond  given  by  a  trustee,  appointed  under  a  decree  in 
equity,  "well  and  truly  to  execute  the  trust  reposed  in  him  by  the  said 
decree,  or  which  shall  be  reposed  in  him  by  any  future  decree  or  order  in 
the  premises,"  brought  for  the  use  of  a  party,  to  whom  a  portion  of  the 
proceeds  of  the  property  sold  by  such  trustee  had  been  ordered  to  be  paid, 
to  recover  the  same,  it  is  not  competent  for  such  trustee  to  question  the 
correctness  of  the  original  decree  for  a  sale ;  or  the  order  relative  to  the 
distribution  of  the  purchase  money. 

If  there  was  any  error  in  the  proceedings  in  Chancery,  of  which  the  trustee 
had  any  right  to  complain,  he  might  have  appealed  therefrom. 

It  is  the  duty  of  a  trustee,  acting  under  a  decree  for  a  sale,  as  soon  as  an  order 
has  passed  distributing  the  proceeds  thereof,  and  he  has  received  the  same, 
either  to  pay  over  the  fund  to  the  party  directed  to  be  paid,  or  carry  the 
same  into  court. 

For  money  detained  against  such  duty,  the  jury  may  give  interest,  by  way  of 
damages. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  debt,  brought  to  May  term  1842,  by 
the  appellee.  The  declaration  assigned  a  breach  of  the  condi- 
tion of  a  bond  of  Robert  R.  Richardson,  dated  22nd  January 
1821,  given  as  a  trustee  of  the  Court  of  Chancery,  under  a 
decree  to  sell  certain  real  estate.  The  defendant  pleaded  nil 
debet.  . 


440  CASES  IN  THE  COURT  OF  APPEALS 

Richardson  vs.  the  State,  use  of  Rawlings. — 1845. 

The  plaintiffs,  to  support  the  issue  on  their  part,  offered  in 
evidence  the  record  of  the  proceedings  of  the  Court  of  Chan- 
cery, in  the  cause  in  which  the  bond  declared  on  was  given, 
and  then  closed  their  case.  These  proceedings  are  sufficiently 
set  forth  in  the  opinion  of  this  court. 

This  record  contained  an  audit  of  the  account  between  the 
estate  of  Thomas  Richardson,  deceased,  Dr.,  with  Robert  R. 
Richardson,  trustee,  Cr.,  dated  10th  February  1821,  in  which 
Thomas  Rawlings  was  allowed  $214.79,  ratified  on  the 
10th  May  1821. 

The  defendant,  for  the  purpose  of  proving  a  payment  on 
account  of  the  amount  appearing  to  be  due  to  the  cestui  que 
use  of  the  plaintiffs  on  the  above  record,  offered  in  evidence 
the  following  paper : 

1821 — May  10.  To  Thomas  Rawlings,  as  pr.  au- 
ditor's acc't.       -  -    $214  79 
Interest  to  10th  May  1836, 15yrs.       193  50 

408  29 
1836— May  10.  By  cash  paid,  -       200  00 

208  29 
To  in't.  to  Jan'ry  15th  1841,  4 

yrs.,  8  ms.  and  5  ds.,      -  58  41 

$266  70 

Which  it  was  admitted  was  an  account  made  on  behalf  of 
the  cestui  que  use,  and  furnished  to  the  defendant's  testator, 
and  here  closed  their  testimony. 

1st.  The  defendant  prayed  the  court  to  instruct  the  jury, 
that  the  plaintiff's  cestui  que  use  was  not  entitled  to  the  legacy 
mentioned  in  the  will  in  the  said  record,  until  he  arrived  at  the 
age  of  twenty-one  years,  and  that  he  is  not  entitled  to  interest 
on  said  legacy  prior  to  his  majority,  unless  the  jury  shall  be- 
lieve that  the  defendant  used  the  money  for  his  own  benefit  in 
the  interim,  of  which  there  is  no  evidence  in  the  case. 

2nd.  That  the  cestui  que  use  aforesaid,  is  not  entitled  to  in- 
terest on  the  said  legacy  until  there  is  a  demand  therefor,  and 


OP  MARYLAND.  441 

Richardson  vs.  the  State,  use  of  Rawlings.— 1845. 

that  there  is  no  evidence  of  demand  prior  to  10th  June  1836, 
and  that  the  charge  of  interest  in  the  said  account  offered  by 
the  defendant  to  prove  the  payment  of  the  sum  of  $200,  does 
not  entitle  the  plaintiff  to  the  interest  there  charged,  unless  the 
jury  shall  believe,  that  prior  to  such  demand,  the  defendant 
used  the  said  legacy  for  his  own  benefit,  of  which  there  is  no 
testimony  in  the  cause. 

The  court,  (PURVIANCE,  A.  J.,)  refused  to  give  these 
instructions,  and  the  defendant  excepted. 

The  defendant  below  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS,  MAGRUDER  and  MARTIN,  J. 

By  LATROBE  for  the  appellants,  and 
By  DAVID  STEWART  for  the  appellees. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

The  intestate  of  the  plaintiff  in  error  was  appointed,  by  the 
Chancellor,  trustee  to  sell  certain  property,  and  upon  his  bond, 
the  condition  of  which,  required  him  to  execute  the  trust  re- 
posed in  him  by  the  decree,  or  which  shall  be  reposed  in  him 
by  any  future  decree  or  order  in  the  premises,  this  suit  was 
instituted.  The  plaintiff  below,  in  his  declaration,  set  forth 
the  cause  of  action.  After  reciting  the  decree,  the  execution 
of  the  bond,  the  sale  of  the  premises,  report  of  the  trustee, 
and  confirmation  of  the  sale,  it  states,  that  the  auditor  of  the 
court,  by  order  of  the  Chancellor,  did  state  an  account,  and 
on  the  10th  May  1821,  reported,  that  of  the  proceeds  of  sale,  the 
person,  for  whose  use  this  suit  is  brought,  was  entitled  to 
$214.79.  The  report  was  confirmed  by  the  Chancellor,  who 
ordered,  that  the  proceeds  of  sale,  so  as  aforesaid  made,  be 
applied  accordingly,  with  interest,  as  it  had  been,  or  might  be 
received.  It  is,  then,  alleged,  that  on  the  6th  day  of  March 
1828,  the  trustee  received  and  collected,  of  the  purchaser  of 
the  premises,  the  principal,  and  a  further  sum  for  interest  then 
due,  which,  by  the  terms  of  the  decree,  he,  the  trustee,  ought 
to  have  brought  into  court  to  be  applied,  and  the  portion  to 
56  v.2 


442  CASES  IN  THE  COURT  OF  APPEALS 


Richardson  vs.  the  State,  use  of  Rawlings. — 1845. 

which  Rawlings,  the  cestui  que  use,  was  entitled,  to  be  paid  to 
him.  For  the  non-payment  of  the  sum  ascertained,  by  the 
Chancellor's  order,  to  be  due  to  this  cestui  que  use,  with  the 
interest  thereon,  this  suit  was  brought. 

A  verdict  being  obtained  by  the  plaintiff,  the  defendant 
below  appealed.  The  bill  of  exceptions  taken  in  the  case, 
discloses  to  us  every  thing,  which  we  can  know  to  have  taken 
place  in  the  course  of  the  trial. 

Whether  the  proof  entitled  the  plaintiff  below  to  a  verdict 
at  all,  and  if  it  did,  for  what  sum?  Whether  the  jury  gave  too 
much,  or  too  little  for  damages?  are  not  the  questions  which 
we  are  to  decide. 

From  the  decree  of  the  Chancellor,  or  from  any  order  which 
the  Chancellor  passed  in  the  case,  no  appeal  was  ever  prayed. 

Ought  the  court  to  have  given  the  instructions  which  the 
defendant  below  asked,  or  either  of  them?  The  first  prayer 
is,  that  the  plaintiff  is  not  entitled  to  the  legacy  mentioned  in 
the  will  in  the  said  record,  until  he  arrived  to  the  age  of 
twenty-one  years,  and  that  he  is  not  entitled  to  interest  on 
said  legacy,  prior  to  his  majority,  unless  the  jury  shall  believe, 
that  the  defendant  used  the  money  for  his  own  benefit,  in  the 
interim. 

We  can  discover  no  error  in  the  refusal,  by  the  court  below, 
to  give  this  instruction,  whether  the  original  decree  was  cor- 
rect, or  whether  the  Chancellor  erred  in  the  order  which  he 
passed,  relative  to  the  distribution  of  the  purchase  money, 
were  questions  not  before  the  court  below,  and  which  certainly 
could  not  be  raised  by  him,  who  took  upon  himself  the  burthen 
of  executing  the  decree,  and  who  was  bound,  by  the  terras  of 
the  condition  of  his  bond,  to  execute  the  trust  reposed  in  him 
by  the  decree;  or  which  might  be  reposed  in  him  by  any  future 
decree  or  order  in  the  premises.  If  there  was  any  error  in  the 
proceedings,  of  which  the  trustee  had  a  right  to  complain,  he 
might  have  appealed  therefrom  ;  no  such  appeal  having  been 
taken,  it  is  no  defence  in  this  action  upon  the  bond,  for  not 
performing  the  order  of  the  Chancellor,  that  the  Chancellor's 
order  is  not  correct.  The  matter  which  this  prayer  brought 
before  the  court,  was  without  the  issue. 


OF  MARYLAND.  443 


Richardson  vs.  the  State,  use  of  Rawlings. — 1845. 


Nor  does  there  appear  to  have  been  committed  by  the  court 
below,  any  error  in  rejecting  the  second  prayer.  The  order  of 
the  Chancellor  was  passed  the  10th  May  1821  ;  and  the  suit 
was  instituted  in  1842.  The  trustee's  duty,  as  soon  as  the 
order  was  passed,  and  the  money  was  received  by  him,  was  to 
pay  it  over  to  the  parties,  or  to  carry  it  into  the  Court  of  Chan- 
cery. Surely  the  jury  might  give  interest,  by  way  of  damages, 
for  the  detention  of  the  money;  and  in  ascertaining  the  sum 
yet  due,  were  not  bound  to  refuse  to  allow  interest  until  the 
time  mentioned  in  the  prayer.  Indeed,  the  proof  furnished  by 
the  defendant  shows,  that  he  could  not  ask  to  be  released  from 
the  payment  of  interest  until  the  10th  June  1836,  mentioned 
in  his  prayer. 

It  is  not  for  this  court  to  judge,  whether  the  evidence  war- 
ranted a  verdict  for  the  plaintiff;  no  exception  taken  in  the 
case,  brings  such  a  question  before  us ;  possibly  the  jury  were 
governed  entirely  by  the  defendant's  own  testimony.  This 
court  can  see  nothing  in  the  refusal  by  the  court  below  to  give 
the  instructions  which  were  asked,  which  will  authorize  them 
to  send  the  case  back  for  a  second  trial. 

Something  was  said,  in  the  course  of  the  argument,  about 
a  claim  of  the  defendant's  intestate  for  supporting  the  children. 
It  is  possible,  that  the  Chancellor  might  have  allowed  such  a 
claim,  and  directed  it  to  be  deducted  from  the  interest,  which, 
from  time  to  time,  the  defendant's  intestate  received.  But 
even  if  the  defendant's  intestate  had  a  just  claim,  yet  as  he 
did  not  exhibit  it  at  the  right  time,  and  in  the  proper  court, 
this  court  is  not  at  liberty,  for  that  reason,  to  reverse  the  judg- 
ment of  the  court  below. 

JUDGMENT    AFFIRMED. 


444  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White.r-1845. 

THE  MAYOR  AND  CITY  COUNCIL  OF  BALTIMORE  vs.  HENRY 
WHITE. — June  1845. 

The  tenant  in  fee  of  a  lot  binding  on  the  basin  of  the  city  of  Baltimore, 
leased  the  same  for  a  term  of  years,  reserving  a  right  to  distrain  and  re- 
enter  ;  and  granted  his  lessee  "the  exclusive  right  of  extending,  not 
exceeding,  &c.,  into  the  water,  any  and  every  part  of  said  lot  which 
fronted  the  basin,  provided  ho  could  obtain  permission  for  that  purpose, 
from  tho  Mayor  $c.  of  Baltimore,  or  the  legislature  of  the  State.  The 
reversion  of  this  lot  was  sold  to  O.,  who  recovered  the  leased  premises  by 
ejectment  for  non-payment  of  rent,  and  applied  to  the  corporation  of  B. 
for  liberty  to  extend  tho  lot  into  the  basin,  according  to  the  original  lease, 
which  was  granted,  and  the  extension  made.  HELD  : 
1st.  That  the  right  to  make  tho  improvement,  and  it,  when  made,  did  not 

remain  in  the  heirs  of  first  tenant  in  fee,  who  leased  it. 
2nd.  By  the  sale  of  the  reversion  to  O.,  all  the  right  of  the  original  tenant 
in  fee,  both  in  tho  lot,  and  the  permission  to  extend  the  same,  as  granted 
by  tho  lease,  vested  in  O. 

3rd.  By  the  forfeiture  of  the  lease,  consequent  upon  the  recovery  in  eject- 
ment, no  right  reverted  to  the  first  tenant. 

4th.  That  if  the  lessee  had  made  tho  improvement  under  the  permission 
granted  by  his  lease,  the  lessors  and  his  assigns  could  have  distrained  or  ro- 
entered  upon  it,  as  upon  the  original  lot. 

Tho  permission  granted  by  the  Mayor  and  City  Council  of  Baltimore,  to 
extend  an  improvement  into  the  water,  to  an  owner  of  a  lot  adjacent 
thereto,  is  not  within  our  registration  system. 
That  system  sanctions  no  conveyance  of,  or  incumbranco  upon  real  property, 

created  by  matter  in  pais,  or  resting  in  parol. 

The  means  by  which  a  wharf  is  erected,  under  the  act  of  1745,  in  the  city  of 
Baltimore,  and  appropriated  to  the  public  use,  form  a  part  of  the  paper 
title,  tho  record  evidence,  which  must  be  resorted  to,  and  examined,  to  trace 
the  right  to  such  property ;  no  patent  issues,  but  the  title  must  conform  to 
tho  acts  of  1745,  ch.  9  ;  1783,  ch.  24 ;  1796,  ch.  68 ;  and  the  ordinances 
of  that  city. 

The  law  imputes  to  a  purchaser  knowledge  of  all  facts,  appearing  at  the 
time  of  his  purchase  upon  the  paper  or  record  evidence  of  title,  which  it 
was  necessary  for  him  to  inspect  to  ascertain  its  sufficiency. 
So  tho  purchaser  of  a  wharf  in  the  city  of  Baltimore,  erected  under  the 
authority  of  the  acts  of  1745,  1783,  and  1796,  though  bona  fide,  is  affected 
with  notice  of  the  permission  granted  to  build  it,  and  bound  by  it. 
Where  an  ordinance  was  passed,  granting  permission  to  build  a  wharf,  which 
required  the  written  assent  of  tho  applicant  for  such  permission,  and  it 
appeared  that  he  erected  the  wharf,  the  law  will  presume  such  written 
assent,  and  the  grantor,  and  his  subsequent  assignees,  will  be  estopped 
from  denying  such  assent. 


OF  MARYLAND.  445 


The  City  of  Baltimore  vs.  White.— 1845. 


Under  the  acts  of  1783  and  1796,  the  Mayor  and  City  Council  of  Baltimore 
may  refuse  their  assent  to  the  erection  of  a  wharf,  or  may  grant  it  with 
such  conditions,  limitations  and  restrictions,  as  they  may  deem  most  bene- 
ficial to  the  navigation,  and  use  of  the  port,  of  that  city. 

Such  a  grant  upon  condition,  that  its  exterior  margin  shall  constitute  a  public 
wharf,  is  valid.  Its  dedication  to  the  public  use,  when  erected,  may  be 
required. 

The  collection  of  wharfage  upon  a  public  wharf,  is  a  fit  subject  for  State 
legislation. 

The  act  of  1827,  ch.  162,  sec.  4,  gives  the  M.  and  C.  C.  of  Baltimore,  the 
right  to  charge  and  collect  wharfage  from  public  wharves,  and  where  the 
owner  of  a  lot  adjacent  to  such  a  wharf,  demands  and  receives  the  wharf- 
age, the  city  may  recover  the  amount  unlawfully  received,  and  withhold 
from  them,  by  such  owner. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  assumpsit,  commenced  on  the  1st  Sep- 
tember 1840,  for  money  had  and  received,  by  the  appellee,  for 
the  use  of  the  appellants.  The  defendant  pleaded  the  general 
issue. 

Before  the  jury  was  sworn,  the  parties  agreed,  that  the  action 
was  brought  for  the  purpose  of  trying  the  following  questions. 

1st.  Whether  the  wharf  in  the  city  of  Baltimore,  known  by 
the  name  of  Oliver's  wharf,  or  any,  and  if  any,  what  part  of 
it  is  a  public  wharf? 

2nd.  Whether,  if  it  shall  be  decided,  that  the  said  wharf,  or 
any  part  of  it  is  public,  the  defendant  has  acquired  any  such 
right  to  the  part  so  decided  to  be  a  public  wharf,  as  to  debar 
the  plaintiffs  from  charging  and  collecting  to  their  use,  such 
rate  of  wharfage  as  they  may  think  reasonable,  of  and  from  all 
vessels,  resorting  to  or  lying  at,  landing,  depositing  or  trans- 
porting goods  or  articles,  other  than  the  productions  of  this 
State,  at  or  on  the  part  of  said  wharf,  so  decided  to  be  public? 
And  for  the  purpose  of  fully  and  fairly  trying  and  deciding  the 
said  questions,  it  is  mutually  agreed,  that  the  defendant  shall 
admit  the  receipt  of  a  sufficient  sum  of  money,  previous  to 
the  institution  of  this  action,  as  wharfage,  to  which  the 
plaintiffs  would  be  entitled,  if  entitled  to  recover  by  the  deci- 
sion of  the  questions  above  stated,  as  will  sustain  the  juris- 
diction of  the  court.  It  is  further  agreed,  that  each  party  shall 


446  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White. — 1845. 

be  entitled,  on  the  trial  of  the  case,  to  give  in  evidence  all 
such  documents  and  testimony,  as  would  be  proper  and  com- 
petent to  use  in  any  other  form  of  action  at  law,  or  in  equity, 
that  could  be  instituted  and  tried,  in  regard  to  the  just  and  full 
decisions  of  the  questions  above  stated,  or  either  of  them.  It 
is  also  agreed,  that  printed  copies  of  all  acts  of  Assembly,  and 
ordinances  of  the  city,  shall  be  read  in  evidence  by  each  party, 
and  that  plats,  maps,  and  copies  of  documents,  deemed  to  be 
correct  by  the  counsel  on  each  side,  shall  be  admitted  in  evi- 
dence, without  incurring  the  expense  of  special  surveys  or 
authentication,  and  that  all  errors  in  the  form  of  action,  and  in 
the  pleadings,  shall  be  released  by  each  party. 

The  plaintiffs  to  support  the  issue  on  their  part  joined,  offer- 
ed in  evidence  to  the  jury,  that: 

Thomas  McEldery  of  Baltimore  county,  deceased,  was 
seized  and  possessed  in  fee  of  the  tracts  of  land,  called  "Cole's 
Harbor  and  Todd's  Range."  That  he  died  so  seized  and  pos- 
sessed. That  on  the  29th  day  of  July  1813,  Elizabeth  McEl- 
dery, John  McEldery  and  Thomas  McEldery,  under  authority 
of  an  act  of  Assembly  of  Maryland,  passed  at  November  ses- 
sion 1810,  chap.  138,  duly  executed  and  acknowledged,  and 
recorded  an  indenture  of  lease  to  Martin  F.  Mayer,  for  all 
that  lot  of  ground,  situate  in  the  city  aforesaid,  and  contained 
within,  &c.,  beginning  for  the  same  on  the  west  side  of  Union 
Dock,  at  the  distance  of  720  feet  southerly,  from  the  point  or 
place,  where  the  west  side  of  said  dock  would  be  intersected 
by  the  south  side  of  Wilkes  street,  if  extended ;  and  running 
thence  southerly,  bounding  on  the  west  side  of  said  dock  425 
feet ;  thence  south  forty-seven  degrees  west,  still  bounding  on 
the  water  36  feet ;  thence  north  forty-eight  degrees  west,  still 
bounding  on  the  water  205  feet,  2  inches  ;  thence  north  three 
degrees  west,  still  bounding  on  the  water  305  feet ;  and  thence 
by  a  straight  line  to  the  place  of  beginning,  together  with 
all,  &c.  To  have  and  to  hold  the  said  lot  and  premises,  with 
the  appurtenances,  together  with  the  exclusive  right  of  extend- 
ing, not  exceeding  one  hundred  and  four  feet  into  the  water, 
any  and  every  part  of  the  said  lot,  piece  or  parcel  of  ground, 


OF  MARYLAND.  447 


The  City  of  Baltimore  vs.  White.— 1845. 


which  fronts  the  Basin,  provided  he  can  obtain  permission  for 
that  purpose,  from  the  city  council  of  Baltimore,  or  from  the 
legislature  of  the  State  of  Maryland,  unto  the  said  Martin  F. 
Maker,  his,  &c.,  from,  &c.,  for  and  during,  and  until  the  full 
end  and  term  of  ninety-nine  years,  from  thence  next  ensuing, 
with  the  right  in  the  lessors,  to  distrain,  re-enter,  &c. 

Whereby,  they  conveyed  to  Martin  F.  Maker,  for  the  term 
of  ninety-nine  years,  renewable  forever,  with  the  rights  and 
privileges  in  said  lease  recited,  the  premises  therein  described, 
being  parts  of  said  tracts  of  land,  of  which  the  said  Thomas 
McEldery  died  seized,  and  possessed  as  aforesaid.  That  on 
the  29th  day  of  the  same  year,  the  said  Martin  F.  Maker, 
by  indenture,  assigned  and  transferred  said  demised  premises 
to  Job  Smith. 

That  on  25th  February  1817,  Horatio  McEldery  exhibited 
his  petition  in  the  Court  of  Chancery,  praying  for  the  sale  of 
the  real  estate  of  Thomas  McEldery,  or  of  so  much  thereof 
as  was  necessary  for  the  payment  of  his  debts ;  that  upon 
said  petition  proceedings  were  duly  had,  and  on  the  14th  July 
1817,  a  sale  of  the  interest  of  Thomas,  in  and  to  the  premises 
described  in  the  foregoing,  lease,  was  duly  decreed  by  the 
Chancellor  of  Maryland,  and  Thomas  Phenix  was  appointed 
trustee  to  make  said  sale ;  that  the  sale  thereof,  in  pursuance 
of  said  decree,  was  made  by  said  trustee  to  Robert  and  John 
Oliver,  to  whom  a  conveyance  thereof  was  made  by  inden- 
ture, bearing  date  on  the  1st  April  1818. 

That  in  1820,  Robert  and  John  Oliver,  re-entered  upon  said 
demised  premises,  for  the  non-payment  of  the  rent  accruing 
under  said  lease,  and  by  an  action  of  ejectment  for  the  non- 
payment of  rent  under  the  statute  of  4th  Geo.,2d,  instituted  in 
Baltimore  county  court,  ejected  Job  Smith  from  their  premises. 

The  plaintiffs  further  offered  in  evidence  the  following  peti- 
tion, which  it  was  admitted  was  signed  and  presented  by  Robert 
and  John  Oliver,  dated  October  16th,  1821. 

"To  the  honorable,  the  Mayor  and  City  Council  of  Baltimore  : 
The  petition  of  Robert  Oliver  and  John  Oliver,  sheweth,  that 
they  are  rightful  owners  and  proprietors  of  a  parcel  of  ground 


448  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White.— 1845. 

situated  on  the  west  side  of  Union  Dock,  in  the  city  of  Balti- 
more, and  bounded,  in  part,  by  the  water  of  the  basin  of  Bal- 
timore, which  is  shewn  on  the  plot  hereto  annexed.  They 
further  state,  that  under  the  conveyance  to  them  of  said  ground, 
there  was  granted  the  exclusive  right  of  extending,  not  ex- 
ceeding one  hundred  and  four  feet  into  the  water,  any  and 
every  part  of  said  parcel  of  ground  which  fronts  the  basin, 
provided  permission  for  that  purpose  could  be  obtained  from 
the  corporation  of  Baltimore,  or  the  legislature  of  this  State. 
They  conceive  that  the  grant  of  such  privilege,  would  not  be 
an  infringement  of,  nor  would  it  interfere  with  private  rights. 
Wherefore,  they  pray,  that  by  an  ordinance,  or  resolution  of 
your  honors,  your  petitioners  may  be  permitted  to  extend  their 
aforesaid  ground  from  its  present  limits,  to  the  dotted  lines 
shewn  on  the  plot  aforesaid,  from  E  to  F,  and  from  F  to  G, 
and  they,  as  in  duty  bound,  &c. 

ROBERT  and  JOHN  OLIVER. 

Baltimore,  October  6th,  1821." 

And  the  ordinance  thereon  passed,  approved  10th  Novem- 
ber 1821,  chapter  103,  also  the  following  petition  likewise: 
admitted  to  have  been  signed  by  the  said  Robert  and  John 
Oliver,  dated  8th  November  1821. 

"To  the  Mayor  and  City  Council  of  Baltimore.  Gentlemen, 
having  examined  an  ordinance,  passed  in  pursuance  of  our 
petition,  relative  to  the  extension  of  our  property,  binding  on, 
and  at  the  termination  of  Hugh  street,  deem  the  conditions  too 
hard,  and  therefore  ask  leave  to  contract  the  same  within  the 
line  on  the  plat  from  E  to  G,  and  request  that  an  ordinance 
may  pass  accordingly,  all  which  is  respectively  prayed  for,  by 
gentlemen.  Your  ob't.  servants, 

Signed,  ROBERT  and  JOHN  OLIVER. 

8th  November  1821." 

And  the  ordinance  of  19th  November  1821,  chapter  101, 
(which  ordinance,  with  all  others,)  and  the  proceedings  of  the 
City  Councils  relating  to  the  case,  it  is  agreed,  may  be  read 
from  the  printed  books  and  proceedings  of  the  said  Mayor  and 
City  Council,  as  far  as  the  same  may  be  deemed  material  by 


OF  MARYLAND.  449 


The  City  of  Baltimore  vs.  White.— 1845. 


either  plaintiffs  or  defendant,  as  if  the  same  had  been  incorpo- 
rated with,  and  made  part  of  this  bill  of  exceptions. 

The  plaintiffs  further  proved,  by  Jesse  Hunt,  that  he  is  regis- 
ter of  the  city  of  Baltimore,  having  the  care  and  custody  of 
the  papers  connected  with  the  proceedings  of  the  City  Coun- 
cils; that  he  had  carefully  searched  said  papers,  and  that  he 
had  not  been  able  to  find  any  papers  relating  to  said  ordinances 
subsequent  to  the  date  thereof;  that  there  is  no  record  existing 
of  the  proceedings  of  the  commissioners  or  port  wardens,  re- 
lating thereto;  and  they  proved,  by  W.  L.  Marshall  Esq.,  that 
he  had  carefully  searched  the  papers  of  the  port  wardens' 
office,  without  being  able  to  find  any  documents  relating 
thereto.  They  then  offered  in  evidence,  by  Joseph  Owens,  a 
competent  witness,  that  he  was  one  of  the  port  wardens  of  the 
city  of  Baltimore,  for  the  years  1821  and  1822;  that  he  recol- 
lects the  fact,  that  the  grounds  included  within  the  lines  of  E,  F, 
G,  and  the  other  lines  embracing  the  parallelogram,  described 
on  the  plat  accompanying  the  petition  of  Robert  and  John 
Oliver,  of  the  16th  of  October  1821,  were  filled  up  in  pursu- 
ance of  the  ordinance  of  the  19th  of  November  1821,  by  the 
authorities  of  the  city  of  Baltimore;  that  they  were  engaged 
in  said  work  during  the  period  of  about  two  years,  and  that 
the  expense  of  said  filling  up,  was  paid  by  the  city  of  Balti- 
more. They  further  proved,  by  said  Owens,  that  he  was  pre- 
sent, in  the  office  of  the  port  wardens'  of  Baltimore  in  1821, 
when  the  Mayor  of  the  city  presented  to  said  port  wardens, 
the  letter  of  Robert  and  John  Oliver,  signifying  their  assent  to 
the  terms  of  the  ordinance  of  the  19th  of  November  1821,  and 
that  soon  thereafter,  the  work  of  filling  up  said  ground  was 
commenced  by  the  city  authorities ;  that  said  letter  he  sup- 
posed to  have  been  filed,  but,  that  he  has  no  knowledge  what 
has  become  of  it.  They  further  proved,  by  the  said  Owens, 
that  after  the  passage  of  the  said  last  mentioned  ordinance, 
and  when  he,  as  port  warden,  was  about  to  proceed  to  fill  up 
said  ground,  he  bad  an  interview  with  Robert  Oliver,  upon 
private  business  of  the  said  Oliver,  in  which  the  improvement 
of  the  property  referred  to,  became  the  subject  of  conversation, 
57  v.2 


450  CASES  IN  THE  COURT  OF  APPEALS 

Tho  City  of  Baltimore  vs.  White — 1845. 

when  said  Oliver  told  witness  that  he  had  assented  to  the  terms 
of  said  ordinance,  although  he  thought  it  hard,  that  he  should 
be  required  to  fill  it  up  with  fresh  earth  to  the  extent  required, 
over  the  filling  which  was  to  be  done  by  the  city.  They  fur- 
ther offered  evidence  by  Samuel  Boyd,  that  he  was  likewise  a 
port  warden  in  1821  and  1822;  that  he  knows  that  the  grounds 
of  Robert  and  John  Oliver  were  filled  up  by  the  city,  in  pur- 
suance of  the  ordinance  of  19th  November  1821,  but  that  he 
has  no  recollection  of  ever  having  seen  a  letter,  or  other  paper 
signifying  the  assent  of  said  Olivers  to  the  terms  of  said  ordi- 
nance. They  likewise  offered  evidence,  by  Walter  Frasier,  that 
he  was  a  laborer  in  the  mud  machine  belonging  to  the  city  of 
Baltimore,  in  the  years  1821  and  1822;  that  he  assisted  in 
filling  up  the  grounds  of  Robert  and  John  Oliver,  above  de- 
scribed, and  that  Mr.  Oliver  was  almost  every  day  present 
whilst  the  work  was  in  progress,  and  gave  directions  as  to  the 
manner  in  which  it  was  to  be  done. 

It  was  admitted,  that  the  plat  above  referred  to,  and  accom- 
panying this  bill  of  exceptions,  justly  locate?  and  describes  the 
premises  purchased  by  Robert  and  John  Oliver  from  Thomas 
Phenix,  as  before  stated. 

The  plaintiffs  further  offered  in  evidence,  by  Jesse  Hunt,  the 
register  of  the  city  of  Baltimore,  that  the  city  authorities  col- 
lected wharfage  upon  the  property  in  controversy,  from  1826 
to  1831  inclusive;  and  proved,  by  McNeill,  that  witness,  in 
conjunction  with  Taylor,  rented  the  wharf  in  controversy  for 
several  years  before  the  year  1831,  from  Sprigg,  who  was  the 
officer  charged  by  the  city  authorities  with  the  collection  of 
wharfage  and  tonnage,  and  that  he  paid  therefor,  $10  per 
month ;  that  by  virtue  of  this  renting,  witness  collected  wharf- 
age and  otherwise  used  said  property,  without  molestation  or 
interruption  from  Mr.  Oliver  until  1831,  when  he  was  told  by 
Mr.  Oliver  that  he  was  entitled  to  said  wharf,  and  desired  wit- 
ness to  acknowledge  himself  the  tenant  of  one  Boyer,  who  held 
under  Oliver,  and  that  upon  witness  declining  so  to  do,  Oliver 
cut  loose  the  scow  of  witness  froin  said  wharf,  after  which, 
witness  rented  from  Boyer,  and  continued  so  to  do  till  he  gave 
up  possession  of  the  wharf. 


OP  MARYLAND.  451 


The  City  of  Baltimore  v/t.  White.— 1845. 


The  plaintiffs  further  offered  in  evidence,  that  John  Oliver  is 
dead  ;  that  Robert  Oliver  thereupon  became  entitled  to  his  in- 
terest in  said  property;  that  Robert  Oliver  is  dead,  and  that 
the  defendant  purchased  said  property  from  his  representatives, 
duly  authorised  to  sell  the  same,  and  now  holds  under  said  pur- 
chase. It  was  admitted,  that  the  defendant  has  in  hand  $100, 
received  by  him  as  wharfage  upon  said  property. 

The  plaintiffs  further  proved,  by  George  M.  Gill,  Esq.,  that 
the  space  of  ground  marked  on  the  aforesaid  plot,  as  a  street 
thirty  feet  wide,  Hugh  street,  was  laid  out  as  a  street  in  the 
year  1820,  by  the  commissioners  appointed  and  authorised  by 
law  to  divide  the  real  estate  of  the  said  Thomas  McEldery 
among  his  heirs,  and  that  he,  the  said  Gill,  had  become  pos- 
sessed of  a  portion  of  the  lots  fronting  on  said  street,  by 
intermarriage  with  one  of  the  heirs  of  said  McEldery,  and 
had  leased  and  sold  said  lots  as  binding  upon  said  street;  and 
had  always  considered  said  street  as  a  public  street,  or  high- 
way, made  such  in  virtue  of  said  division,  and  had  so  parti- 
cularly explained  to  those  who  leased  or  purchased  said  lots 
from  him. 

The  defendant  proved,  by  said  Gill,  and  by  others,  that  the 
ground,  thus  marked,  had  not  been  paved  or  lighted,  or  other- 
wise reduced  under  the  police  regulations,  but  has  always  been 
very  much  blocked  up  by  lumber  and  other  obstructions  of 
various  kinds;  and  that  the  occupiers  of  the  lots  binding  upon 
it  had,  from  the  filling  up  of  the  said  ground  to  the  division  of 
the  said  McEldery's  estate  above  referred  to,  collected  wharf- 
age upon  the  portions  of  said  street  in  front  of  their  respec- 
tive lots,  and  that  since  the  said  division,  they  have  continued 
to  do  so. 

The  defendant  also  offered  in  evidence,  that  Hugh's  street 
had  never  been  condemned,  or  opened  as  a  public  street  or 
highway;  and  also  proved,  by  John  Dukehart,  that  he  was  a 
city  commissioner  the  same  years  as  Joseph  Owens,  and  had 
never  seen,  or  heard  of  a  letter  from  Robert  and  John  Oliver. 
or  either  of  them,  in  reference  to  the  acceptance  of  said  ordi- 
nance. 


452  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  »».  White.— 1845. 

The  defendant  also  proved,  by  one  Fenby,  that  the  parallelo- 
gram E,  F,  G,  had  not  been  kept  in  repair  at  the  public  ex- 
pense, but  that  he  was  obliged,  by  the  city,  to  pay  the  usual 
hire  of  the  mud  machine  of  the  city  for  repairing  the  same. 
The  said  Fenby  being,  at  the  time  said  repairs  were  made,  and 
hire  claimed,  the  tenant  under  Robert  Oliver,  claiming  as  has 
been  heretofore  set  out. 

The  defendants  further  gave  in  evidence  the  patent  for  the 
said  property,  and  prayed  the  court  to  instruct  the  jury  as  fol- 
lows: 

1st.  That  if  they  find,  from  the  evidence,  that  McEldery, 
the  elder,  was  originally  the  owner  of  that  part  of  the  tract  of 
land  called  Cole's  Harbor,  which  was  bounded  by  the  waters 
of  the  basin,  and  being  such  owner,  made  by  authority  of  law, 
all  the  ground  upon  the  plat  which  is  in  evidence,  which  lies 
immediately  contiguous  to  such  part  of  said  tract,  and  in  front 
thereof,  including  that  portion  of  said  ground  which  was  leased 
afterwards  by  said  McEldery  to  Martin  F.  Maker,  that  then 
said  McEldery  was  the  owner,  in  fee  simple,  of  all  of  said 
ground  so  made  as  aforesaid. 

2nd.  If  the  jury  find  the  facts  stated  in  the  first  prayer,  and 
also  find,  that  after  said  portion  of  said  ground  was  leased  to 
Martin  F.  Maker,  and  before  the  year  1821,  Robert  and  John 
Oliver  became,  by  clue  course  of  law,  by  title  derived  from 
said  McEldery,  the  owners  in  fee  of  said  portion  of  said 
ground,  and  that  being  such  owners,  they,  by  the  permission 
of  the  Mayor  and  City  Council  of  Baltimore,  or  their  duly 
constituted  agents  for  this  purpose,  extended  the  said  portion 
of  said  ground  further  into  the  basin,  as  the  same  appears  on 
the  plats,  that  then  the  said  Olivers,  by  virtue  of  said  facts, 
became,  as  soon  as  said  further  improvement  was  made,  owners 
in  fee  of  the  same. 

3rd.  If  the  jury  find  the  facts  stated  in  the  two  first  prayers, 
and  shall  also  find,  that  in  the  division  which  was  made  of  that 
part  of  said  ground  on  the  plats,  which  was  made  as  aforesaid, 
by  said  McEldery,  amongst  his  heirs,  and  for  the  purpose  of 
that  division,  the  streets  located  on  said  plats,  were  laid  out, 


OF  MARYLAND.  453 


Tho  City  of  Baltimore  vs.  White.— 1845. 


and  called  for  in  the  said  division,  and  in  the  conveyances 
made  in  pursuance  thereof;  and  shall  also  find,  that  said  streets, 
or  the  ground  on  which  they  are  located,  have  in  no  other  way 
been  disposed  of  by  the  heirs  or  assigns  of  said  McEldery,  or 
condemned,  or  appropriated  to  the  use  of  the  plaintiffs;  and 
if  they  shall  further  find,  that  such  streets  have  never  been 
actually  opened  or  used  by  the  public,  but  on  the  contrary,  and 
especially,  the  one  called  in  the  evidence  Hugh's  street,  have 
been  always,  from  the  time  they  were  laid  out  as  aforesaid, 
totally  obstructed  by  the  proprietors  of  the  lots,  bounding  on 
the  same,  by  fences  or  otherwise,  so  as  to  render  a  passage 
over  the  same  impracticable;  that  the  plaintiffs  have  no  title 
in  the  said  streets,  or  the  ground  covered  by  them,  and  cannot, 
because  of  any  such  title  in  said  Hugh's  street,  derive  any  title 
to  that  portion  of  the  said  wharf  improvement,  made  by  the 
Messrs.  Olivers,  which  is  in  controversy  in  this  action. 

4th.  If  the  jury  find  the  facts  stated  in  the  three  preceding 
prayers,  then  the  plaintiffs  have  failed  to  prove  title  in  that  part 
of  said  wharf  which  is  in  controversy  in  this  suit,  and  are  not 
entitled  to  recover. 

The  plaintiffs  prayed  the  court  to  instruct  the  jury  as  follows : 
That  if  they  shall  believe  the  facts  set  forth  in  the  several 
prayers,  submitted  on  the  part  of  the  defendant,  and  shall  fur- 
ther find  from  the  evidence  in  the  cause,  that  the  petition,  dated 
6th  October  1821,  and  signed  Robert  and  John  Oliver,  was  so 
signed  by  said  Olivers,  on  the  day  of  the  date  thereof,  and  that 
afterwards,  and  before  the  passage  of  the  ordinance,  of  the  extra 
session  of  1821,  (and  approved  9th  November  1821,)  the  said 
petition  was  presented  to  the  Mayor  and  City  Council  of  Balti- 
more; and  that  afterwards,  and  on  the  basis  of  said  petition, 
the  said  ordinance  was  passed,  and  made,  and  approved,  and 
that  the  said  Robert  Oliver,  and  said  John  Oliver,  had  notice  of 
the  passage  of  said  ordinance,  and  of  all  its  terms,  provisions 
and  conditions;  and  shall  further  find,  that  after  the  passage  of 
said  ordinance,  and  after  notice  of  the  terms,  provisions  and 
conditions  thereof,  the  said  Robert  Oliver  and  John  Oliver, 
signed  the  other  petition,  and  dated  8th  November  1821,  and 


454  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White.— 1845. 

presented  the  same,  so  signed  by  them,  to  the  Mayor  and  City 
Council  of  Baltimore;  and  shall  further  find,  that  after  the  re- 
ceipt of  said  last  mentioned  petition,  and  on  the  basis  there- 
of, the  Mayor  and  City  Council  of  Baltimore,  passed  the  ordi- 
nance which  has  been  given  in  evidence,  and  approved  10th 
Nov.  1821,  and  that  the  said  Robt.  Oliver  and  Jno.  Oliver  had 
notice  thereof,  and  assented  to  the  terms,  provisions  and  con- 
ditions thereof,  and  of  the  said  preceding  ordinance,  as  modi- 
fied or  altered  by  said  last  mentioned  ordinance;  and  shall  also 
further  find,  that  the  ordinance,  approved  19th  Nov.  1841,  was 
passed  and  made  by  the  Mayor  and  City  Council  of  Baltimore, 
and  that  said  Robert  Oliver  and  John  Oliver  had  notice  there- 
of, and  of  the  terms,  conditions  and  provisions  of  said  ordi- 
nance, and  assented  to  the  same;  and  that  afterwards,  said 
Robert  Oliver  and  said  John  Oliver  made  and  constructed  the 
extension  of  ground  into  the  basin,  in  the  manner  and  to  the 
extent  given  in  evidence  in  this  cause,  and  that  the  said  exten- 
sion was  made  under  the  authority,  and  under  the  terms,  con- 
ditions and  provisions  of  said  ordinances;  and  shall  further 
find  from  the  evidence  in  the  cause,  that  sand  was  supplied 
and  delivered  agreeably  to  the  terms  and  provisions  of  the  said 
last  mentioned  ordinance,  and  that  the  sand  was  so  accepted 
and  received  by  the  said  John  Oliver  and  Robert  Oliver,  or  by 
their  agents,  with  their  knowledge  and  acquiescence;  and  shall 
further  find,  that  after  said  extension  was  made  and  completed, 
the  city  authorities,  with  the  knowledge  and  acquiescence  of 
the  said  Robert  Oliver  and  John  Oliver,  took  possession  of  the 
wharf,  (now  claimed  by  the  plaintiffs  as  a  public  wharf,)  under 
the  authority,  and  by  force  of  the  terms,  conditions  and  provi- 
sions of  said  several  ordinances,  and  so  continued  in  posses- 
sion thereof,  from  1825  to  1831,  without  any  claim  on  the  part 
of  said  Robert  Oliver  and  John  Oliver,  or  either  of  them,  and 
without  any  question  or  denial  of  the  title  of  the  said  plain- 
tiffs, to  hold  and  possess  the  same  as  a  public  wharf,  that  then 
the  plaintiffs,  under  and  by  virtue  of  said  ordinances,  and  of 
the  facts  hereinbefore  stated,  became,  and  were  entitled,  by 
contract,  to  the  use  and  possession  of  said  wharf,  as  a  public 


OF  MARYLAND.  455 

The  City  of  Baltimore  vs.  White.— 1845. 

wharf  of  the  city  of  Baltimore,  and  that  as  against  said  Robert 
and  John  Oliver,  the  said  plaintiffs,  under  and  by  virtue  of  its 
provisions,  was  lawfully  entitled  to  claim  and  hold  the  same 
as  a  public  wharf.  If  the  jury  shall  find  the  facts  stated  in 
the  foregoing  prayer,  and  that  the  defendant  derived  title  to 
the  property,  connected  with  the  matter  in  controversy,  under 
the  heirs  of  Robert  and  John  Oliver,  and  is  in  possession,  and 
claiming  the  title  thereto,  under  said  Olivers;  and  shall  further 
find,  that  said  defendant  has  received  from  tenants,  and  others 
in  possession  of  said  wharves,  $100  and  upwards  as  wharfage, 
that  then  the  plaintiffs  are  entitled  to  recover  such  sum  so  in 
the  hands  of  the  defendant. 

And  the  court,  (ARCHER,  C.  J.,  and  MAGRUDER,  A.  J.,) 
granted  the  first  and  third  prayers  of  the  defendant  so  as  afore- 
said offered,  and  rejected  the  second  and  fourth  prayers,  sub- 
stituting in  lieu  of  said  second  and  fourth  prayers  the  instruc- 
tion following: 

If  the  jury  find  from  the  evidence,  that  Martin  F.  Maker 
never  improved  the  grounds  included  in  his  lease,  nor  applied 
for  leave  to  do  so,  and  that  Robert  and  John  Oliver,  in  the  year 
1820,  obtained  a  judgment  in  ejectment,  as  the  grantee  of  the 
fee  from  the  McElderys,  and  the  jury  should  believe,  that  the 
McElderys  were  owners,  in  fee,  of  the  lots  fronting  on  the 
said  improvement,  and  designated  on  the  plot  as  line  marked 
104  feet,  that  then  the  plaintiffs  cannot  recover,  because  the 
lease  to  Maker,  was  merged  by  said  recovery,  by  Oliver,  as 
grantee  of  the  fee,  and  that  the  covenant  made  to  Maker  by 
McEldery,  in  relation  to  said  improvement,  became  thereby 
inoperative,  and  passed  no  rights  to  Robert  and  John  Oliver; 
and  that  if  the  jury  find  the  facts  offered  in  evidence  in  the 
cause  to  be  true,  McEldery's  heirs  were  the  owners  of  the  fee 
on  said  lots,  fronting  on  the  water  as  above  designated. 

The  court  also  rejected  the  prayers  offered  by  the  plaintiffs, 
to  which  instruction,  so  given  by  the  court,  and  each  of  them, 
and  to  their  refusal  to  give  the  instructions  prayed  for  by  the 
plaintiffs,  and  each  of  them,  the  plaintiffs  excepted,  £c. 


456  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White.— 1845. 

The  verdict  and  judgment  being  against  the  plaintiffs,  they 
prosecuted  this  appeal. 

The  cause  was  argued  before  DORSEY,  CHAMBERS  and 
MARTIN,  J. 

By  PRESTMAN,  NELSON  and  McMAHON  for  the  appellants, 
and 

By  GLENN  and  REVERDY  JOHNSON  for  the  appellee. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

In  bar  of  the  appellant's  right  to  recover,  in  the  action  they 
have  instituted,  a  great  variety  of  objections  have  been  inter- 
posed. 

First,  it  is  insisted,  that  the  right  to  make  the  improvement 
in  question,  and  the  improvement  when  made,  remain  in  the 
heirs  of  Thomas  McEldery;  and  that,  therefore,  the  agree- 
ment of  the  Olivers,  in  regard  to  the  public  wharf,  was  wholly 
inoperative  and  void.  This  objection,  we  think,  cannot  be 
sustained.  By  the  deed  for  the  reversion  to  Robert  and  John 
Oliver,  all  the  right,  title,  and  interest  of  the  heirs  of  McEldery, 
as  well  in  the  water  lots  demised  to  Martin  F.  Maker,  as  in 
the  extension  or  improvement  thereon,  which  the  lessee  was 
authorised  to  make,  passed  to  said  Olivers,  who,  by  virtue  of 
said  conveyance,  and  their  recovery  in  ejectment  against  the 
lessee,  and  those  claiming  under  him,  under  the  statute  of  4 
George  2,  became  seized,  in  fee,  of  all  the  right,  title,  and  in- 
terest in  the  property  held  by  the  heirs  of  McEldery,  prior  to 
the  lease  to  Maker;  and,  upon  the  forfeiture,  or  termination  of 
the  lease,  no  right  or  interest  in  the  original  lot  demised,  or 
the  improvement  or  extension  authorised  to  be  made  by  the 
lessee,  could  revert  to  them.  To  sustain  the  argument,  urged 
by  the  appellee,  that  no  entry  or  distress  could  have  been  made 
by  the  lessors  or  their  assigns,  had  the  improvement  been 
made  by  Maker,  the  lessee,  no  authority  has  been  adduced, 
nor  do  we  think  any  can  be  found ;  nor  can  we  conceive  a 
reason  why,  if  the  improvement  had  been  the  work  of  the 
lessee,  the  right  of  entry,  or  distress,  by  the  lessors  or  their 


OF  MARYLAND.  457 


The  City  of  Baltimore  vs.  White.— 1845. 


assigns,  upon  the  improvement,  was  not  as  indisputable,  as  it 
was  upon  the  original  water  lot  itself. 

The  next  objection,  relied  on  by  the  appellee,  is,  that  to 
give  validity  to  the  creation  of  this  public  wharf,  in  the  mode 
in  which  it  has  been  attempted,  would  be  in  violation  of  the 
registration  system  of  our  State,  in  regard  to  interests  in  lands, 
and  in  direct  opposition  to  the  decision  of  this  court,  in  the 
case  of  Hayes  and  Richardson,  1  Gill  fy  John.  366.  This  ob- 
jection cannot  be  maintained.  To  give  efficiency  to  the 
arrangement,  by  which  this  public  wharf  has  been  provided 
for,  is  in  perfect  accordance  with  the  doctrines  established  in 
the  case  of  Hayes  and  Richardson,  and  with  the  general  registry 
system  of  the  State.  It  sanctions  no  conveyance,  or  incum- 
brance,  created  by  matters  in  pais,  or  resting  in  parol;  the 
means  by  which  the  wharf  has  been  erected  and  appropriated 
to  the  public  use  form  a  part  of  the  paper  title,  the  record  evi- 
dence, which  must  be  resorted  to  and  examined,  to  trace  the 
title  to  the  property  in  question.  No  patent  for  this  improve- 
ment has  issued,  or  will  issue  from  the  land  office  of  the  State. 
No  title  to  it  can  be  shewn,  but  by  a  reference  to  the  acts  of 
J745,  ch.  9,  sec.  10;  of  1783,  ch.  24,  sec.  9;  of  1796,  ch.  68, 
sec.  10 ;  and  the  ordinances  of  the  city  of  Baltimore,  of  Novem- 
ber the  10th  and  19th,  of  1821 ;  and  these  disclose  every 
thing  in  relation  to  the  wharf,  as  fully  as  if  its  construction  and 
use  had  been  provided  for  in  a  patent  from  the  land  office^  or 
by  deed  duly  executed,  acknowledged,  and  recorded  amongst 
the  land  records  of  Baltimore  county. 

The  next  objection,  raised  to  the  appellants  recovery,  is,  that 
the  appellee  is  a  bona  Jide  purchaser,  without  notice,  and, 
therefore,  even  though  the  Olivers  were  bound  by  the  arrange- 
ment as  to  the  public  wharf,  yet,  that  it  has  no  obligation  as 
to  him.  For  this  objection,  there  is  not  the  slightest  founda- 
tion; the  law  imputing  to  a  purchaser  a  knowledge  of  all  facts, 
appearing,  at  the  time  of  his  purchase,  upon  the  paper  or 
record  evidence  of  title,  which  it  was  necessary  for  him  to  in- 
spect, to  ascertain  its  sufficiency. 
58  v.2 


458  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White.— 1845. 

Another  of  the  objections  of  the  appellee  is,  that  it  would 
be  a  fraud  upon  him,  to  presume  the  writing  by  the  Olivers  of 
the  letter  assenting  to  the  terms  of  the  city  ordinances,  as  re- 
quired by  the  ordinance  of  the  19th  of  November  1821.  If 
presuming  the  writing  of  such  a  letter  would  be  a  fraud  upon 
the  appellee,  it  would  be  equally  a  fraud  upon  the  Olivers.  Can 
such  a  presumption  as  against  them,  be  termed  a  fraud?  Nay, 
would  it  not  rather  be  regarded  as  a  fraud  on  their  part,  after 
exercising  rights  and  acquiring  property  which  only  could  have 
resulted  from  such  a  letter,  to  deny  that  they  had  written  it? 
They  are  both  at  law  and  in  equity  estopped  from  doing  so ; 
and  the  estoppel  applies  with  equal  force  against  the  appellee 
claiming  under  them. 

The  act  of  1745,  ch.  9,  sec.  10,  enacts,  that  "all  improve- 
ments, of  what  kind  soever,  either  wharves,  houses,  or  other 
buildings,  that  have,  or  shall  be  made  out  of  the  water,  or 
where  it  usually  flows,  shall  (as  an  encouragement  to  such  im- 
provers,) be  forever  deemed  the  right,  title,  and  inheritance  of 
such  improvers,  their  heirs,  and  assigns  forever."  To  prevent 
the  evil  consequences  likely  to  flow  from  this  latitudinarian 
enactment,  a  prominent  object  of  the  act  of  1783,  ch.  24,  in 
appointing  "wardens  for  the  port  of  Baltimore,"  was  to  pro- 
tect, as  concerns  its  navigation,  the  interests  of  its  citizens, 
and  the  public  at  large;  as  a  means  of  enabling  the  port  war- 
dens to  do  this,  by  the  9th  section  of  this  act  it  is  enacted, 
"that  no  person,  or  persons,  shall  make,  alter,  or  extend  a 
wharf  or  wharves,  from  and  after  the  publication  hereof,  without 
laying  before  the  said  wardens  a  plan  of  his  or  their  intended 
wharf  or  wharves,  and  without  consent  first  obtained,  under  the 
seal  of  the  board,  to  carry  the  same  into  effect."  Under  this 
act  it  appears  to  be  conceded  in  the  argument,  (as  well  it 
might  be,)  that  the  port  wardens  were  competent  to  have  au- 
thorised the  extension  or  improvement  asked  for  by  the  Olivers, 
upon  condition,  that  it  be  constructed  of  particular  materials ; 
that  it  be  abutted  by  a  wall  of  stone,  instead  of  wood,  and 
that  it  be  of  a  specified  height,  prescribed  by  the  wardens  of 
the  port  of  Baltimore,  or  the  successors  to  their  powers,  the 


OF  MARYLAND.  459 


The  City  of  Baltimore  vs.  White.— 1845. 


Mayor  and  City  Council  of  Baltimore.  It  is  equally  clear,  that 
the  Mayor  and  City  Council  of  Baltimore  might  have  refused 
their  assent  to  the  wharf  extension,  in  the  plan  proposed,  or 
have  required  that  a  dock  should  be  left  in  the  middle  of  the 
extension,  for  the  mooring  of  vessels,  or  that  rings  or  posts  be 
attached  to  the  wharf,  so  that  vessels  might  make  fast,  or  moor 
to  it,  whether  lying  out  in  the  basin  or  by  the  side  of  the  wharf. 
If  the  safe  and  convenient  navigation  of  the  port  of  Baltimore, 
by  the  public,  made  such  requisitions  necessary,  (of  which 
necessity,  the  Mayor  and  City  Council  were  the  judges,)  they 
were  warranted  in  exacting  them. 

Of  the  great  advantage  and  convenience  resulting  to  the 
interests  of  navigation,  by  the  public  wharf  in  question,  no- 
body can  doubt.  And,  as  the  case  is  now  before  us,  we  are 
bound  to  presume  that  the  extension,  as  proposed  by  the 
Olivers,  could  not,  in  the  judgment  of  the  city  authorities, 
have  been  granted,  without  detriment  to  navigation,  unless  the 
injuries  resulting  from  it,  were  counteracted  by  the  great  facili- 
ties afforded  to  navigation  by  the  surrender  to  its  uses,  of  the 
exterior  margin  of  the  improvement  in  the  shape  of  a  public 
wharf.  If  the  city  authorities  believed  that  the  unconditional 
grant  of  the  power  of  improvement,  proposed  by  the  Olivers, 
would  be  ruinous  to  the  navigation  of  the  pott  of  Baltimore; 
but,  that  its  effects  would  be  wholly  obviated  by  the  facilities 
to  navigation  afforded  by  the  wharf  at  the  southern  side  of 
the  improvement,  being  dedicated  to  the  use  of  the  navi- 
gating public,  were  they  not  authorised,  nay,  were  they  not 
bound  to  withhold  their  assent,  unless  such  a  dedication  were 
made?  or  suppose  the  Olivers'  original  application  had.  thus 
proffered  the  dedication,  ought  the  corporate  authorities,  enter- 
taining such  opinions,  to  have  withheld  their  assent  ?  We 
think  not. 

This  case  is  not  at  all  changed  by  the  fact,  that  the  privilege 
sued  for  by  the  Olivers  was  not  granted,  but  upon  superadded 
terms  and  conditions  imposed  by  the  corporation.  Their  ac- 
tion upon  this  subject  must  receive  the  same  interpretation  as 
if  the  terms,  ultimately  agreed  on,  had  been  the  first,  and  only 


460  CASES  IN  THE  COURT  OF  APPEALS 

The  City  of  Baltimore  vs.  White.— 1845. 

plan  and  proposition  of  the  Olivers,  and  as  such,  had  been 
unconditionally  assented  to.  Nor  is  the  case  varied  by  the 
fact,  that  the  board  of  wardens  of  the  port  of  Baltimore,  had 
been  abolished,  and  their  powers  vested  in  the  corporate  au- 
thorities of  the  city.  What  has  been  done,  must  receive  the 
determination  that  would  be  given  to  it,  had  the  original  plan 
or  application  from  the  Olivers,  been  to  the  wardens ;  and  been 
that  ultimately  established  by  the  city  ordinances,  and  so  un- 
qualifiedly assented  to  by  the  board  of  wardens. 

We  do  not  concur  with  the  counsel  of  the  appellee,  who 
regard  this  case  as  identical  in  principle,  with  the  case  of  the 
Mayor,  Aldermen  and  commonalty  of  the  city  of  New  York, 
against  Scott,  decided  by  the  Supreme  Court  of  New  York,  and 
reported  in  1  Caines,  543.  In  the  latter  case,  the  act  of  the 
legislature  required  the  owners  of  lots  to  nil  them  up,  and 
make  piers  according  to  the  directions  of  the  corporation.  On 
non-compliance,  the  corporation  were  to  be  at  liberty  so  to  do, 
and  to  receive  the  wharfage  to  their  own  use.  The  corpora- 
tion passed  an  ordinance  requiring  the  owners  of  lots,  within 
a  time  specified  to  fill  them  up  and  make  the  piers,  (which  was 
accordingly  done,)  and  reserving  a  portion  of  the  wharfage  on 
the  piers,  and  declaring  the  piers,  public  streets,  or  highways, 
to  be  kept  in  repair  by  the  said  owners,  their  heirs  and  assigns. 
For  such  a  reservation  and  declaration,  not  a  semblance  of  au- 
thority was  shewn  ;  and  the  court  decided,  that  such  a  reser- 
vation was  void,  being  wholly  unauthorised  by  the  act  of  the 
legislature,  and  it  is  difficult  to  imagine,  how  a  doubt  could 
have  arisen  in  such  a  case. 

In  the  case  before  us,  the  ordinances  of  the  corporation  do 
not,  peremptorily,  legislate  away  the  water  rights  of  the  Olivers, 
without  color  of  authority,  and  in  manifest  contravention  of 
the  act  of  the  legislature,  under  which  the  ordinances  were 
passed,  as  was  done  to  the  lot  owners,  by  the  Mayor,  Alder- 
men, and  commonalty  of  the  city  of  New  York,  in  the  case 
reported  in  1  Caines;  but  simply  refuse  an  unconditional  as- 
sent (which  as  a  faithful  statutory  guardian  of  the  navigation 
of  the  port  of  Baltimore,  the  corporation  was  bound  to  with- 


OF  MARYLAND.  461 


The  City  of  Baltimore  vs.  White.— 1845. 


hold,)  to  an  improvement  that  could  only  be  made,  consistently 
with  the  paramount  interests  of  navigation,  upon  the  terms  pre- 
scribed by  the  ordinances.  They,  the  Olivers,  were  deprived 
of  no  right  which  they  possessed;  they  were  imperatively  en- 
joined to  do  nothing;  their  actions  wrere  the  result  of  their 
own  discretion.  They  were  offered  powers  of  great  value 
and  importance,  limited  by  no  restriction,  but  that  necessarily 
imposed  by  a  just  regard  to  the  rights  and  interests  of  the 
public.  The  acceptance  or  rejection  of  them  rested  entirely 
with  themselves. 

If  the  conditional  assent,  given  by  the  corporation  of  Balti- 
more, to  the  improvement,  had,  without  reference  to  navigation, 
or  the  protection  of  the  facilities  thereof,  secured  to  the  corpo- 
ration for  its  own  benefit,  a  portion  of  the  improvement,  or  of 
the  wharfage  arising  therefrom,  then  would  the  condition,  as 
such,  be  wholly  inoperative  and  void.  But  such  was  not  the 
conduct  of  the  Mayor  and  City  Council  of  Baltimore.  They 
reserved  nothing  for  the  separate  benefit  of  the  corporation ; 
but,  as  the  protectors  and  guardians  of  navigation,  stipulated 
exclusively  for  its  preservation  in  securing  to  it,  in  exchange 
for  the  facilities  surrendered,  the  equally  important  facilities  to 
navigation  resulting  from  the  creation  of  the  public  wharf  in 
question.  We  think,  therefore,  that  the  requisition,  or  condi- 
tion, (or  contract,  if  it  may  be  so  called,)  under  which  the 
Olivers  improvement  was  made,  was,  on  the  part  of  the  Mayor 
and  City  Council  of  Baltimore,  a  legitimate  exercise  of  the 
powers  conferred  on  them,  by  the  laws  of  the  State,  for  the 
protection  of  the  navigation  of  the  port  of  Baltimore. 

Assuming  the  wharf  in  question  to  be  a  public  wharf,  the 
collection  of  wharfage  upon  it  formed  a  fit  subject  for  State 
legislation;  and  the  4th  section  of  the  act  of  1827,  ch.  162, 
gives  to  the  Mayor  and  City  Council  of  Baltimore,  the  right 
to  charge  and  collect  the  wharfage  for  which  their  action  was 
instituted,  and  which  is  unlawfully  withheld  from  them  by  the 
appellee,  who  has  received  it. 

We  concur  with  the  county  court  in  granting  the  defen- 
dant's third  prayer,  but  dissent  from  their  rejection  of  the 


462  CASES  IN  THE  COURT  OF  APPEALS 


Phelan  &  Bogue  vs.  Crosby. — 1845. 


plaintiffs'  prayers,  arid  from  the  granting  of  the  defendant's 
first  prayer,  and  from  the  instruction  given  by  the  court  to  the 
jury,  and  therefore  reverse  its  judgment. 

JUDGMENT  REVERSED  AND  PROCEDENDO  ISSUED. 

CHAMBERS  J.,  dissented. 


NICHOLAS  PHELAN  AND  ROBERT  BOGUE  vs.  Jos.  CROSBY. — 
June  1845. 

The  plaintiff  proved,  that  on  the  3rd  March  1841,  he  sold  and  delivered  to  the 
defendant  a  quantity  of  merchandize,  to  the  value  of  $494.25,  and  there  rest- 
ed his  cause.  The  defendant  offered  in  evidence  a  bill  of  parcels,  for  the  same 
merchandize,  of  the  same  date  and  amount,  at  six  months,  due  3-6  Septem- 
ber 1841,  on  which  was  written  by  the  plaintiffs :  "Received  payment  for 
above  as  follows,  R's  note,  dated  16th  December  1840,  a  5  ms.,  due  16th 
May  for  $484.79.  Interest  on  amount  of  note  from  16th  May  to  3rd  Sep- 
tember, $8.55.  Cash  for  balance,  $0.91."  The  plaintiff  produced  the 
note  in  court,  and  offered  to  deliver  it  up ;  and  proved,  that  on  the  4th  May 
JR.  applied  for  a  release  under  the  insolvent  laws.  The  note  was  in  blank, 
and  the  defendant,  at  the  time  he  passed  it  to  plaintiff,  refused  to  endorse 
it.  There  was  evidence  given,  without  exception,  that  the  plaintiffs,  after 
inquiry  about  R.,  at  the  request  of  the  defendant,  agreed  to  take  the  note 
at  their  own  risk ;  that  the  defendant  knew,  before  the  time  of  his  pur- 
chase, that  R.  did  not  pay  his  notes  at  maturity,  and  also  evidence  from 
which  the  jury  might  infer  fraud  on  the  part  of  the  defendant.  HELD  : 

1st.  Under  the  act  of  1825,  ch.  117,  this  court  only  reviews  the  questions 
decided  by  the  county  court,  so  that,  where  evidence  is  given  without 
exception,  the  parties  cannot  object  to  its  admissibility  in  this  court. 

2nd.  That  the  receipt  was  evidence  of  payment,  and  the  plaintiffs,  upon  the 
surrender  of  the  note  of  R.,  were  not  necessarily  entitled  to  a  verdict. 

3rd.  That  the  knowledge  by  the  defendant,  when  he  passed  the  note,  that 
its  maker  was  in  a  failing  condition,  did  not,  under  the  circumstances  of 
the  case,  make  the  passing  of  the  note  a  fraud  upon  the  plaintiffs. 

4th.  That  there  was  no  evidence  that  the  defendant  concealed  the  informa- 
mation  ho  had,  in  relation  to  R.,  from  the  plaintiffs,  at  the  time  of  passing 
away  the  note. 

5th.  That  if  the  note  of  R,  was  received  by  the  plaintiffs  in  payment,  without 
recourse  to  the  defendant,  in  the  event  of  its  being  dishonored,  then  he  is 
not  entitled  to  recover,  unless  the  jury  shall  find  the  transfer  to  have  been 
fraudulently  made. 


OF  MARYLAND.  463 


Phelan  &  Bogue  vs.  Crosby. — 1845. 


6th.  That  if  tho  sale  was  made  upon  a  credit,  not  expired  when  the  action 
was  brought,  then  the  plaintiffs  are  not  entitled  to  recover  in  assumpait, 
although  the  note  was  received  but  as  collateral  security,  and  not  in 
payment. 

A  judgment  at  law  reversed,  without  prejudice. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  action  of  assumpsit,  brought  on  the  3rd  June 
1841,  by  the  appellants  against  the  appellee.  They  declared 
upon  the  common  counts,  to  which  the  defendant  pleaded 
the  general  issue. 

The  plaintiffs,  to  support  the  issue  on  their  part  joined, 
offered  in  evidence  to  the  jury,  that  on  the  3rd  day  of  March 
1841,  they  had  sold  and  delivered  to  the  defendant,  a  quan- 
tity of  segars,  to  the  amount  of  $494.25.  The  defendant 
thereupon  offered  in  evidence  the  following  bill  and  receipt : 

"Baltimore,  March  3rd,  1841. 
Mr.  J.  Crosby  bought  of  Phelan  fy  Bogue, 
3000  Segars  in  bundles,     a     $10,  -  $  30  00 

23£  M  do.  in  flat  boxes    a       10,  -     232  50 

25|  M  do.  do.  a         9,  -     231  75 

Six  months,  due  Sept.  3-6. 

$494  25 

Received  payment  for  above,  as  follows  : 
R.  Moore's  note,  date  Dec.  16,  '40, 

five  ms.  due  May  16,  for     -         -    $484  79 
Interest  on  am't  of  note,  from  May 

16th   to   Sepember  3,  8  55 

Cash  for  balance,  91 

$494  25 

PHELAN  &  BOGUE." 

And  proved  the  signature  to  the  said  receipt  to  be  in  the 
hand  writing  of  the  plaintiffs. 

Whereupon  the  plaintiffs  produced  in  court,  and  offered  to 
deliver  up  to  the  defendant,  the  note  of  R.  Moore,  mentioned 
in  said  bill  and  receipt ;  and  proved,  that  the  said  Moore,  on 
the  4th  day  of  May  1841,  applied  for  the  benefit  of  the  insol- 
vent laws. 


464  CASES  IN  THE  COURT  OF  APPEALS 

Phelan  &  Bogue  vs.  Crosby. — 1845. 

The  defendant  then  offered  in  evidence  by  Mr.  Lanalian, 
a  competent  witness,  that  in  the  spring  of  1841,  he  had  a 
conversation  with  Phelan,  one  of  the  plaintiffs,  in  which  Phe- 
lan stated  to  witness,  that  he  and  Bogue  had  sued,  or  were 
about  to  sue  the  defendant;  that  defendant  had  swindled  them. 
That  witness  then  inquired  of  him,  whether  in  the  sale  of  the 
segars  referred  to,  they  had  not  agreed  to  take  Moore's  note 
at  their  own  risk  ?  That  Phelan  replied  they  had,  and  that 
the  defendant  had  refused  to  endorse  said  note,  (which  it  was 
admitted,  at  the  time  it  was  passed  to  plaintiffs  was  in  blank, 
and  in  favor  of  no  particular  payee,}  and  requested  the  plain- 
tiffs before  receiving  it,  to  inquire  into  the  credit  and  condition 
of  the  said  Moore  ;  that  said  plaintiff  had,  accordingly,  made 
inquiry  of  R.  Lemmon  fy  Co.,  and  F.  Boyle,  and  that  upon 
their  representation  of  Moore's  solvency,  had  traded  the  segars 
for  the  note. 

The  plaintiffs  thereupon  offered  in  evidence,  that  the  defen- 
dant, in  the  fall  of  1840,  and  winter  of  1841,  held  several 
notes  of  said  Moore,  one  of  which,  for  $733,  fell  due  on  the 
17th  January  1841.  and  was  unpaid  at  maturity.  That  ano- 
ther, for  $473,  fell  due  on  the  18th  February  1841,  and  was 
also  unpaid  at  maturity.  That  the  defendant,  after  said  notes 
were  due  and  unpaid,  applied  to  said  Moore  to  renew  said 
notes  in  divided  sums,  making  four  notes,  all  of  which  were 
drawn  in  blank.  That  at  the  time  they  Were  signed,  said 
Moore  stated  to  the  defendant,  that  he  could  not  pay  them  at 
maturity;  that  defendant  replied,  that  made  no  difference,  he 
wanted  to  get  them  discounted  at  bank,  and  that  if  he,  Moore, 
was  not  able  to  pay  them  when  they  fell  due,  that  the  defen- 
dant would  pay  or  assist  Moore  to  pay  them.  The  witness 
stated,  that  the  note  hereinbefore  mentioned,  was  not  one  of 
said  four  renewed  notes.  Said  renewed  notes  having  been 
given  for  the  debt  of  another,  for  whom  Moore  was  an  endor- 
ser, whereas  the  note  in  question,  was  given  by  Moore  for  a 
debt  contracted  by  himself  with  the  defendant.  The  plaintiffs 
further  offered  in  evidence  by  John  P.  Jidams,  a  competent 
witness,  that  sometime  in  the  winter  of  1841,  the  defendant 


OF  MARYLAND.  465 


Phelan  &  Boguo  vs.  Crosby. — 1 845. 


offered  the  note  in  question,  in  blank,  to  witness  in  exchange 
for  segars.  That  witness,  in  conformity  with  a  suggestion 
from  the  defendant,  who  refused  to  endorse  said  note,  made 
inquiries  in  regard  to  the  drawer,  which  proving  unsatisfac- 
tory, he  declined  the  arrangement  proposed  by,  and  returned 
the  note  to  the  said  defendant.  They  also  proved  by  Mr. 
Plowman,  a  competent  witness,  that  about  the  same  time,  in 
1841,  he  was  applied  to  by  the  defendant,  who  stated  his  wish 
to  trade  said  note  for  sugar,  with  M.  Bathurst  Sf  Son,  and 
requested  said  Plowman  to  negotiate  said  arrangement  for  him, 
that  Plowman  declined  to  do  so,  unless  the  defendant  would 
endorse  the  note,  which  he  refused  to  do.  That  defendant 
then  applied  to  witness  to  know,  what  he  would  take  to  gua- 
rantee said  note?  Witness  declined  to  make  such  arrange- 
ment, and  inquired  of  defendant,  why  he  would  not  endorse 
the  note  himself?  who  replied,  that  he  did  not  like  to  put  his 
name  on  the  back  of  the  note  of  Moore,  who  had  already  suf- 
fered others  held  by  him,  to  lay  over. 

Whereupon  the  plaintiffs  offered  the  following  prayers: 

1.  That  the  receipt  given  in  evidence  in  this  cause,  is  no 
evidence  of  payment,  and  that  it  is  no  bar  to  the  plaintiffs' 
recovery,  on  their  surrendering  up  to  defendant  the  note  of 
Moore,  mentioned  in  said  receipt. 

2.  If  the  jury  believe,  that  the  defendant,  when  he  gave  the 
note  of  Moore  to  plaintiffs,  knew  that  the  maker  of  such  note 
was  in  a  failing  condition ;  that  passing  it  off  to  plaintiffs,  was 
a  fraud  upon  them,  and  is  no  bar  to  their  suit  in  this  case. 

3.  If  the  jury  believe,  that  when  Moore  gave  the  note  afore- 
said to  defendant,  he  stated  to  him  his  inability  to  pay  them  at 
maturity;  and  that  Crosby  said  to  Moore,  he  did  not  expect 
him  to  pay  them,  but  he  wanted  them  to  get  discounted,  and 
would  pay  them  himself,  or  help  said  Moore  to  pay  them,  at 
maturity;  and  if  the  jury  further  find,  that  Crosby  knew  said 
Moore's  notes  were  laying  over  and  had  been  protested,  and 
prevailed  on  Moore,  in  the  close  of  February  or  beginning  of 
March,  to  give  him  the  note  now  in  question,  dating  it  in  De- 
cember previous;  and  that  defendant,  when  he  passed  said 

59     v.2 


466  CASES  IN  THE  COURT  OF  APPEALS 

Phelan  &  Bogue  vs.  Crosby. — 1845. 

note  to  plaintiffs,  concealed  this  information  from  plaintiffs, 
then  this  note  is  no  bar  to  plaintiffs'  recovery,  if  such  note 
proved  to  be  of  no  value,  and  the  same  is  now  tendered  to  be 
delivered  to  the  defendant. 

And  the  defendant  offered  the  following  prayers: 

1.  If  the  jury  find  from  the  evidence,  the  sale  and  delivery 
of  the  goods,  for  which  this  suit  is  brought  by  the  plaintiffs, 
to  have  been  made  to  the  defendant  on  the  3rd  day  of  March 
1841,  for  the  sum  of  $494.25;  and  shall  also  find,  that  the 
note  of  Robert  Moore,  produced  in  evidence,  was  received  by 
said  plaintiffs  from  said  defendant,  in  payment  of  said  sum. 
and  without  the  right  of  recourse  to  said  defendant,  by  said 
plaintiffs,  in  the  event  of  said  notes  being  dishonored,  and  not 
paid,  that  then  the  plaintiffs  are  not  entitled  to  recover  in  this 
suit,  unless  the  jury  shall  find  the  transfer  of  said  note,  by  the 
defendant  to  the  plaintiffs,  to  have  been  fraudulently  made. 

2.  If  the  jury  find  from  the  evidence,  the  sale  and  delivery 
stated  in  the  preceding  prayer,  and  that  the  same  was  made 
upon  a  credit  of  six  months,  from  the  3rd  of  March  1841,  that 
then  the  plaintiffs  are  not  entitled  to  recover  in  this  suit,  although 
the  jury  shall  believe,  that  the  note  of  Robert  Moore,  mentioned 
in  said  first  prayer,  was  received  by  said  plaintiffs  but  as  col- 
lateral security,  and  not  in  payment  for  said  goods,  said  credit 
not  having  expired  when  this  suit  was  instituted. 

All  of  which,  with  the  exception  of  the  first  and  second 
prayers,  offered  on  the  part  of  the  defendant,  the  court,  (MA- 
GRUDER  and  PURVIANCE,  A.  J.,)  refused. 

To  which  refusal  to  grant  the  plaintiffs'  prayers,  and  to  the 
granting  of  the  defendant's  prayers,  and  each  of  them,  the 
plaintiffs  excepted. 

The  verdict  and  judgment  being  against  the  plaintiffs,  they 
prosecuted  the  present  appeal. 

The  cause  was  argued  before  DORSEY,  SPENCE,  MAGRU- 
DER  and  MARTIN,  J. 

By  GLENN  and  REVERDY  JOHNSON  for  the  appellants,  and 
By  NELSON  for  the  appellees. 


OF  MARYLAND.  467 


Phelan  &  Boguo  vs.  Crosby. — 1845. 


MAGRUDER,  J.,  delivered  the  following  dissenting  opinion 
upon  the  2nd  prayer  of  the  defendant. 

The  plaintiffs  in  error,  brought  this  action  in  Baltimore  coun- 
ty court,  for  goods  sold  and  delivered,  and  the  proof  in  support 
of  their  claim,  as  set  forth  in  the  bill  of  exceptions,  was,  that 
"on  the  3rd  March  1840,  they  sold  and  delivered  to  the  defen- 
dant, a  quantity  of  segars,  to  the  amount  of  $494.25."  This 
is  the  sum  which  they  claimed,  and  upon  this  proof,  they  rested 
their  claim. 

The  defendant,  in  order  to  resist  this  claim,  and  to  prevent 
a  recovery  by  the  plaintiff,  offered  in  proof,  a  bill  of  parcels, 
dated  on  the  same  day,  charging  the  defendant  with  "segars," 
at  6  mo.,  due  Sept.  3rd-6th,  $494.25. 

At  the  foot  of  this  bill,  it  is  stated.     "Received  payment 
for  above  as  follows  : 
R.  Moore's  note,  dated  16  Dec'r.  1840,  3  months 

due  May  16,  for  -      $484  79 

Interest  on  amount  of  note,  from  May  16,  to  Sep- 
tember 3,     -  -:>*8  8  55 
Cash  for  balance              .....  91 


$494  25" 

And  then  follows  the  signature  of  the  plaintiffs  in  error. 
This  paper,  offered  by  the  defendant,  he  contended,  proved, 
1st.  That  the  claim  of  the  plaintiffs  against  the  defendant, 
for  the  segars,  was  satisfied  by  the  acceptance  of  the  note:  and 
2ndly.  It  was  insisted,  that  the  claim,  (if  not  satisfied,) 
was  not  due  until   September  6th,  and  that  the  action  was 
prematurely  brought. 

Whether  upon  either  of  these  grounds  the  defendant  was 
entitled  to  a  verdict,  we  are  required  to  decide. 

One  ground  of  defence  to  the  action  then  is,  that  unless  he 
was  guilty  of  an  alleged  fraud,  the  defendant  has  been  paid 
for  the  segars,  and  no  recovery  could  be  had,  although  the 
institution  of  this  suit  had  been  delayed  until  the  credit  expired. 
This  defence  is  grounded  upon  the  paper,  which  was  offered 
in  evidence  by  the  defendant,  (the  bill  and  statement  which 


468  CASES  IN  THE  COURT  OF  APPEALS 

Phclan  &  Bogue  vs.  Crosby. — 1845. 

follows  it,)  and  this  paper,  it  is  said,  is  to  be  taken  in  connec- 
tion with,  and  its  meaning  may  be  ascertained  by  the  parol 
evidence,  which  the  defendant  adduced. 

It  is  true,  lhat  a  mere  receipt,  (not  under  seal,)  is  but  prima 
facie  evidence,  that  the  sum  of  money  mentioned  in  it,  was 
paid,  and  of  course,  oral  evidence  is  admissible  to  contradict 
it,  to  prove  what  sum  was  paid,  and  when  paid.  Abundance 
of  authority  to  this  effect,  may  be  found  collected  in  2nd  Soun- 
ders, on  Pleading  and  Evidence,  308,  309,  (1st  Am.  Edit.} 
When,  however,  an  attempt  is  made  by  oral  proof,  to  contradict 
the  receipt,  it  is  usually  made,  not  by  the  party  who  offers  it  in 
evidence,  but  by  his  adversary.  By  what  evidence  the  claim 
was  established  in  this  case,  the  bill  of  exceptions  does  not 
inform  us,  but  at  no  period  of  the  trial,  could  this  paper  have 
been  admitted,  if  offered  by  the  plaintiffs.  It  was  introduced 
into  the  cause  by  the  defendant,  and  shall  he,  who  offers  the 
written  testimony,  be  permitted,  by  parol  proof,  to  falsify  it? 
To  insist  that  its  meaning  ought  to  be  disregarded,  if  its  mean- 
ing, when  collected  from  its  words,  is  not  corroborated  by  the 
oral  proof? 

The  general  rule  is,  that  parol  proof  is  not  admissible  to 
alter  or  vary,  (to  falsify)  the  written  paper,  and  this  rule  is  to 
be  observed,  even  when  the  parol  testimony  is  offered  by  the 
adverse  party,  except  in  cases  of  latent  ambiguity,  fraud,  mis- 
take, or  surprise.  Hence,  the  rejection  of  parol  testimony,  in 
the  case  of  Kemmil  vs.  Wilson,  4  Washington's  C.  C.  R., 
308,  and  in  Batters  vs.  Sellers  and  Patterson,  6  H.  fy  J.  247, 
and  in  other  cases,  many  of  which  are  to  be  met  with  in  the 
report  of  the  latter  case.  See  also  1st  Phil,  on  Ev.  410,  a 
receipt  not  under  seal,  is  an  exception  to  the  rule;  but  a  paper, 
one  object  of  which  is  to  furnish  an  acknowledgment  of  the 
receipt  of  money,  may  contain  other  matter,  which  cannot  be 
varied,  or  contradicted  by  oral  proof.  In  the  case  of  Batters, 
just  mentioned,  if,  at  the  bottom  of  the  bill  of  parcels,  there 
had  been  a  receipt  in  full,  signed  by  the  other  party,  and  in  an 
action  by  the  latter  party,  to  recover  the  prices  of  the  broad 
cloths,  the  defendant  had  offered  in  evidence  that  receipt,  no 


OF  MARYLAND.  469 


Phelan  &  Boguc  vs.  Crosby. — 1845. 


doubt,  oral  proof  would  have  been  admissible,  to  explain  or 
vary  it,  but  the  receipt  at  the  bottom,  would  not  have  autho- 
rized the  defendant  to  offer  the  parol  testimony,  which  the 
report  of  the  case  tells  us,  was  rejected  by  the  court. 

We  are  told  in  Phillips  443,  444,  of  cases,  in  which  oral 
proof  of  independent  facts,  collateral  to  the  written  instrument, 
may  be  admitted,  but  that  doctrine  has  no  application  to  this 
case. 

It  is  undisputed,  in  this  case,  that  almost  every  thing  which 
was  received  by  the  plaintiffs,  for  their  segars,  consisted  of  a 
note  of  hand,  of  a  third  person,  and  that  note,  (the  names  of 
the  parties,  the  sum  for  which  it  was  given,  the  date,  time  of 
payment,  and  every  thing  said  about  the  note,)  is  accurately 
described  in  the  receipt,  yet  the  parol  proof  was  offered,  to  con- 
tradict the  written  paper,  if  the  words  of  the  written  paper,  do 
not  mean  precisely  what  the  defendant  wishes  them  to  mean. 
I  entertain  the  opinion,  that,  without  introducing  another  ex- 
ception to  the  general  rule,  which  declares  parol  testimony  to 
be  inadmissible,  to  vary,  or  contradict  a  written  instrument, 
this  parol  testimony,  (offered  by  the  defendant  too,)  must  be 
entirely  disregarded  in  deciding  the  question,  whether  the 
transfer  by  the  defendant,  and  acceptance  by  the  plaintiff,  of 
the  promissory  note,  mentioned  in  the  receipt,  was  an  extin- 
guishment of  so  much  of  the  plaintiffs'  claim,  for  the  segars, 
or  only  entitled  the  defendant  to  a  credit  on  account  thereof, 
when  the  money  was  received  from  the  maker  of  it?  The  case 
of  Kellogg  vs.  Richards,  14th  Wendell  116,  seems  to  sustain 
this  opinion. 

If  indeed,  in  a  case  like  this  now  before  us,  parol  proof  is 
admitted  to  contradict  the  written  instrument,  with  what  pro- 
priety could  the  Court  of  Appeals,  in  the  case,  2  G.  $  J.  494, 
undertake  to  say,  what  the  meaning  of  the  paper  was,  and  to 
collect  that  meaning  from  its  words?  Surely  the  absence  of 
parol  testimony,  expressly  contradicting  it,  could  not  have 
taken  the  meaning  of  the  contract  from  the  jury,  if  (in  case 
there  was  any  such  testimony,)  the  verdict  of  the  jury  was  to 
be  influenced  by  it.  The  case  went  back  to  be  tried  again, 


470  CASES  IN  THE  COURT  OF  APPEALS 

Phclan  &  Boguo  vs.  Crosby. — 1845. 

and  it  was  sent  back,  with  this  opinion  of  the  court;  yet  if  the 
party  who  had  been  unsuccessful  in  the  Court  of  Appeals,  had 
been  so  fortunate  upon  the  second  trial,  as  to  prove  by  a  wit- 
ness, something  about  the  meaning  of  the  parties  to  that  paper ; 
some  acknowledgment  by  his  adversary,  which  might  be  un- 
derstood by  the  jury  to  mean,  that  the  plaintiff  did  not  under- 
stand the  contract,  as  the  Court  of  Appeals  understood  it, 
would  such  parol  testimony  have  authorized  the  second  jury, 
to  interpret  the  contract,  otherwise  than  as  it  had  been  inter- 
preted by  the  court  of  dernier  resort? 

But  it  is  said,  that  the  parol  testimony  was  admitted,  with- 
out objection.  True,  but  this  cannot  alter  the  law  of  the 
case.  For  what  purpose  it  was  introduced,  does  not  appear: 
but  its  introduction  into  the  case,  even  by  consent,  could  not 
authorise  us  to  learn  from  it  the  meaning  of  the  instrument,  if 
the  law  requires,  that  its  meaning  be  collected  from  its  words. 
Parol  testimony,  introduced  without  opposition,  that  the  testa- 
tor declared  it  to  be  his  meaning,  to  devise  a  fee,  could  not  be 
admitted  to  change  the  meaning  of  the  will,  when  interpreted 
by  its  words,  and  thus  make  a  fee  of  an  estate  for  life. 

The  question  then,  according  to  my  view  of  the  case,  is: 
What  was  the  contract  between  those  parties,  in  relation  to 
this  note?  Was  the  note  received  by  the  parties,  as  collateral 
security,  or  in  satisfaction,  as  an  extinguishment  of  the  claim 
of  the  plaintiffs,  for  the  segars?  and  the  answer  to  this  ques- 
tion, must  be  found  in  the  written  paper. 

In  the  case  of  Glenn  vs.  Smith,  2  G.  fy  J.  494,  it  was  de- 
cided by  this  court,  that  to  give  the  acceptance  of  a  note,  the 
effect  of  an  absolute  payment,  or  extinguishment  of  a  debt,  a 
contract  that  it  should  be  so,  must  be  shown,  and  that  this  was 
not  sufficiently  done  by  the  receipt  in  that  case.  The  receipt 
said,  that  the  promissory  note  had  been  received,  "in  payment 
of  the  above  account."  Is  the  paper,  the  legal  effect  of  which 
is  now  to  be  ascertained,  like  that,  in  the  case  last  mentioned? 
Was  its  operation  only  to  suspend  the  plaintiffs'.right  of  action, 
until  the  note  of  Moore  became  due? 


OF  MARYLAND.  471 

Phelan  &  Bogue  vs.  Crosby. — 1845. 

Now,  it  is  going  very  far  to  say,  that  a  man  has  not  been 
paid  for  his  gopds,  when  he,  who  alone  is  interested  in  a  denial 
of  the  payment,  acknowledges  that  something  which  he  has 
received,  was  received  by  him  in  payment.  This  however,  is 
res  adjudicate.  In  the  case  before  us,  the  plaintiffs  say  some- 
thing more.  They  give  the  credits,  to  which  the  defendant  is 
entitled,  as  well  as  the  price  of  the  article  which  they  sold  to 
him,  and  after  crediting  the  amount  of  the  note,  and  the  inter- 
est upon  it,  it  being  ascertained  that  those  two  credits,  still 
leave  a  balance  due  for  the  segars.  The  next  acknowledg- 
ment by  the  plaintiffs  is,  that  on  the  self  same  day,  when  the 
note  was  received  by  them  as  payment,  they  received  "cash 
for  balance."  Surely,  when  the  creditor  acknowledges  that 
the  balance  of  his  claim  has  been  paid,  and  paid  to  him  in 
cash,  he  ought  not  to  be  allowed  to  say,  that  the  whole  debt, 
with  the  exception  ol  the  balance,  (which  is  admitted  to  be 
paid,)  is  still  due.  This  would  be,  to  deprive  a  creditor  of 
the  privilege  of  making  his  own  contract  with  his  debtor,  and 
in  this  case,  of  exchanging  his  segars  for  the  promissory  note 
of  a  third  person;  and  this,  by  assuming  that  he  did  not  mean 
what  the  words,  which  are  used  by  himself,  to  express  that 
meaning,  must  by  him  have  been  understood  to  mean. 

The  plaintiffs'  cause  of  action  then,  is  not,  in  my  opinion,  to 
be  found  in  this  paper,  but  in  the  alleged  fraud,  which  when 
established,  deprives  the  defendant  of  a  right  to  set  up  this 
paper  as  evidence,  to  defeat  this  claim,  established  by  other 
testimony;  and  I  now  proceed  to  notice  the  second  ground  of 
defence. 

On  the  part  of  the  plaintiffs,  it  is  contended,  that  even  if  this 
note  was  taken  in  satisfaction  of  the  claim,  yet  they  may  re- 
cover the  amount  of  it,  in  an  action  for  goods  sold  and  deliv- 
ered, provided,  that  the  proof  which  they  offered,  satisfied  the 
jury,  that  the  defendant  acted  mala  fide,  having  at  the  time  of 
the  transfer  of  this  note,  to  the  plaintiffs,  knowledge  of  the 
insolvency,  or  failing  circumstances  of  the  maker  of  the  note 
so  transferred,  and  not  communicating  that  knowledge  to  the 
plaintiffs. 


472  CASES  IN  THE  COURT  OF  APPEALS 

Phelan  &  Bogue  vs.  Crosby. — 1845. 

Whether  the  defendant  acted  fraudulently  in  this  transac- 
tion, was  a  question  to  be  decided  by  the  jury,  and  not  by  the 
court.  The  authorities  tell  us,  what  if  proved  to  the  satisfac- 
tion of  the  jury,  would  evidence  fraud  in  the  vendee.  If,  (to 
give  an  example,)  the  vendee  purchased  the  goods,  with  a 
preconceived  design,  of  not  paying  for  them,  then  no  pro- 
perty passes  to  him,  and  the  vendor  has  a  right  to  treat  the 
contract  as  a  nullity,  and  the  vendee,  as  a  person  who  acquired 
the  possession  of  them  tortiously.  17  En.  Com.  L.  Rep.  330. 
So  if  the  defendant,  by  fraud,  procured  the  plaintiff  to  sell  his 
goods  to  an  insolvent,  and  then  got  the  goods  into  his  posses- 
sion, in  such  a  case,  the  plaintiff  is  not  restrained,  by  any 
agreement,  to  give  a  credit,  from  suing  for  the  goods,  as  for 
goods  sold  and  delivered  to  him,  who  is  in  possession.  See 
Hill  vs.  Perrott,  3  Taunton  274,  and  in  1st  Stephens  Nisi 
Prius  285,  it  is  said,  that  an  action  lies  before  the  credit  has 
expired,  if  the  time  given,  was  after  the  sale7  and  not  making 
any  part  of  the  original  contract,  or  if  the  sale,  (purchase,) 
was  not  bona  fide. 

In  deciding  this  question,  the  court  is  required  to  assume, 
that  the  jury  might  have  inferred  from  the  testimony  adduced 
by  the  plaintiffs,  that  the  conduct  of  the  defendant,  was  frau- 
dulent ;  that  at  the  time  of  the  transfer  of  this  note  to  the  plain- 
tiff, it  was,  if  not  quite,  almost  as  valueless  as  a  counterfeit 
bank  note;  that  the  circumstances  of  the  maker,  were  known 
to  the  defendant,  and  not  made  known  by  him,  to  the  plaintiff. 
If  the  facts  be  so,  what  is  to  prevent  the  plaintiffs  from  recov- 
ering? 

Even  in  the  case,  on  which  the  counsel  for  the  defendant 
principally  relies,  (Fergusson  vs.  Covington,  14  Eng.  C.  L. 
Rep.  307,  and  17  E.  C.  L.  R.  330,)  it  is  conceded,  that  before 
the  credit  expires,  the  plaintiff  may  sue  and  recover  in  damages, 
the  value  of  the  goods  fraudulently  obtained,  provided  his 
action  be  trover,  and  not  assumpsit,  for  goods  sold  and  deliver- 
ed. The  ground  of  this  decision,  so  far  as  the  reporter  could 
inform  us,  was,  that  the  only  contract  proved  by  the  plaintiff, 
was  a  contract  or  sale  on  credit.  This  shows  that  the  cases 


OF  MARYLAND.  473 


Phelan  &  Bogne  vs.  Crosby. — 1845. 


are  different.  The  plaintiffs'  proof  in  this  case,  intimates 
nothing  about  a  sale  on  credit.  All  that  is  said  in  regard  to  a 
sale  upon  credit,  came  from  the  defendant. 

But  it  is  insisted,  that  in  this  case,  the  law  will  not  imply  a 
promise,  because  there  was  an  express  promise.  If  the  plain- 
tiffs then  choose  to  sue,  before  the  expiration  of  the  credit, 
they  must  abandon  the  assumpsit,  and  sue  for  a  tort.  The 
amount  of  the  argument  is,  that  if  there  existed  at  one  time 
between  them,  what  the  parties  supposed  at  that  time  to  be  a 
valid  contract,  although  the  law  pronounces  it  to  be  no  con- 
tract, there  is  yet  an  express  contract,  which  will  prevent  the 
law  from  implying  a  contract.  But  this  cannot  be  correct.  The 
plaintiffs  make  out  their  case,  without  relying  on  the  alleged 
contract.  They  may  offer  such  proof,  as  was  deemed  to  be 
sufficient  in  the  case.  In  3rd  Taunton,  the  fraudulent  con- 
tract is  introduced  into  the  case,  and  relied  on  by  the  defen- 
dant. So  soon  as  he  attempts  to  establish  it,  the  plaintiffs 
prove  it  to  be  fraudulent,  and  insist,  that  they  have  a  right  to 
treat  it  as  a  nullity,  and  do  so  treat  it.  If  it  be  a  nullity,  how 
can  it  be  regarded  as  an  express  contract,  and  thereby  prevent 
the  law  from  implying,  in  favor  of  the  plaintiffs,  an  assumpsit 
to  pay  the  value  of  the  goods?  So  soon  as  the  fraud,  which 
vitiates  that  contract,  is  established,  the  case  is  precisely  what 
it  would  have  been,  if  there  had  not  been  furnished  any  proof, 
that  such  a  contract  ever  was  contemplated  by  the  parties,  and 
the  case  made  out,  will  be,  that  the  defendant  got  possession  of 
the  property  of  the  plaintiffs,  and  in  a  way  which  will  authorise 
them,  not  only  to  institute  an  action  for  a  tort,  but  also  upon 
assumpsit.  Why  not  in  this  case,  as  well  as  in  the  case  of  Hill 
vs.  Perrott,  3  Taunton  274,  say,  that  the  law  will  imply  a  con- 
tract, to  pay  for  the  goods,  from  the  circumstance  of  their  having 
been  the  plaintiffs'  property,  and  having  come  to  the  defendants 
possession,  if  unaccounted  for  t  Can  the  defendant  prevent  the 
plaintiffs  from  suing  upon  this  implied  contract,  by  setting  up  an 
agreement,  (to  give  credit,)  which  he  fraudulently  obtained? 
The  answer  to  this,  is  to  be  found  in  the  same  case  in  Taunton. 
The  defendant  "cannot  be  permitted  to  account  for  the  pos- 
60  v.2 


474  CASES  IN  THE  COURT  OP  APPEALS 

Phelan  &  Bogue  vs.  Crosby. — 1845. 

session,  by  setting  up  the  fraudulent  purchase."  And  this, 
because  "no  man  must  take  advantage  of  his  own  fraud." 

In  15  Johnson  475,  the  court  say,  that  the  special  contract, 
as  to  the  manner  of  payment  being  void,  on  account  of  the 
fraud,  the  plaintiff  may  disregard  it,  and  bring  assumpsit  for 
goods  sold.  The  fraudulent  misrepresentations,  made  by  the 
defendant,  vitiated  the  whole  contract.  In  6  Johnson  110,  it 
is  stated,  that  the  taking  of  a  note,  under  a  fraudulent  misrep- 
resentation, was  no  payment,  and  any  term  of  credit,  which 
the  taking  of  the  note  may  have  implied,  became  void.  So 
in  15  Mass.  Reports,  p.  81,  Chief  Justice  Parker,  in  deliver- 
ing the  opinion  of  the  court,  said:  "The  credit  was  obtained 
upon  an  offer  of  adequate  security.  The  security  was  wholly 
worthless.  The  consideration  for  the  credit  therefore  failed, 
and  the  money  thus  wrongfully  obtained,  could  notybr  an  in- 
stant, be  conscientiously  retained.  See  also  2  Johns.  Rep. 
455,  and  the  remarks  of  C.  J.  Eyre,  in  De  Symonds  vs.  Min- 
wicke,  1st  Esp.  430,  and  those  of  Lord  Kenyan,  in  Packford 
vs.  Maxwell,  6  D.  Sf  E.  52. 

It  would  seem,  that  according  to  a  case  relied  on  by  the 
defendant,  (in  17  Eng.  Ch.  Reports,)  the  plaintiff  had  a  right 
to  regard  this  contract,  (as  to  the  time  of  payment,)  as  a  nul- 
lity, and  to  sue  before  the  expiration  of  the  credit,  if  he  sued 
for  a  tort.  If  so,  what  is  there  in  the  case,  to  prevent  them 
from  waiving  the  tort,  and  suing  upon  an  implied  assumpsit. 
This  is  frequently  done.  See  Stockett  against  Watkin's  adm. 
2  G.  #  J.  326. 

In  one  of  the  English  cases,  (4th  East  147,)  in  which  it 
was  decided,  that  the  plaintiff  could  not,  in  that  case,  (unlike 
this,)  bring  an  action  of  assumpsit,  until  the  credit  expired, 
although  he  might  sue  on  the  special  agreement.  Lord  Ellen- 
borough  was  reluctant  to  non-suit  the  plaintiff,  although  there 
was  no  attempt  to  prove,  that  the  defendant,  in  the  purchase 
of  the  goods,  acted  mala  fide.  Another  judge,  (Le  Blanc,) 
in  his  decision,  seems  to  have  been  influenced  by,  perhaps, 
an  extravagent  fondness  for  "the  forms  of  action:"  "In 
all  cases,  without  express  authority  to  the  contrary,  it  is  better 


OP  MARYLAND.  475 


Harlan  vs.  Brown. — 1845. 


to  keep  the  forms  of  action  as  distinct  as  possible,  instead 
of  running  one  into  another."  This  remark  may  be  enti- 
tled to  some  weight,  in  any  case,  to  which  it  can,  with 
truth,  be  applied.  But  for  the  form  of  action  adopted  in  this 
case,  as  a  substitute  for  trover,  (which  all  admit,  might  have 
been  instituted  by  these  plaintiffs,  and  at  the  time  this  suit  was 
brought,)  it  is  believed,  there  will  be  found  "express  autho- 
rity" in  the  cases,  to  which  reference  has  been  given.  In  a 
case  like  this,  and  in  which  the  court,  in  deciding  upon  this 
exception,  must  assume,  that  all  the  justice  is  on  the  side  of 
the  plaintiff,  I  do  not  consider  myself  at  liberty  to  disregard 
such  decisions,  pronounced  by  such  learned  judges,  because 
of  any  thing  to  be  found  in  the  cases  cited,  and  relied  on  by 
the  counsel  for  the  defendant. 

My  opinion  is,  that  the  judgment  of  the  court  below,  ought 
to  be  reversed. 

By  the  other  Judges  : 

JUDGMENT  AFFIRMED,  WITHOUT  PREJUDICE. 


JNO.  H.  HARLAN  AND  MARGARET  HARLAN  vs.  DAVID  BROWN. 
JOHN  H.  HARLAN  AND  MARGARET  HARLAN'S  LESSEES,  vs. 
DAVID  BROWN. — (E.  S.)  June  1845. 

Where  a  will  authorized  ah  executor  to  sell  the  residue  of  the  testator's  real 
and  personal  estate  within  two  years  from  his  decease,  a  sale  made  within 
the  two  years  is  valid,  though  the  conveyance  to  the  purchaser  was  not 
executed  until  after  that  period,  and  parol  evidence  is  admissible  to  show 
the  time  of  sale. 

The  act  of  1831,  ch.  315,  sec.  10,  does  not  relate  to  sales  of  real  property, 
made  before  that  statute  went  into  operation. 

It  is  for  the  court  to  decide  on  the  admissibility  of  evidence,  but  the  compara. 
live  value,  or  weight  of  testimony,  is  for  the  consideration  of  the  jury. 

The  variation  of  the  compass,  and  the  degree  of  it,  are  questions  of  fact,  and 
upon  evidence  affecting  the  degree  of  variation,  it  is  not  for  the  court  to 
say,  that  the  evidence  offered  by  one  party,  is  better  than  that  offered  by 
the  other,  to  guide  the  jury  in  determining  whether  any,  or  what  allowance 
shall  be  made  for  such  variation. 


476  CASES  IN  THE  COURT  OF  APPEALS 

Harlan  vs.  Brown. — 1845. 

APPEALS  from  Cecil  County  Court. 

The  first  appeal  was  in  an  action  of  trespass,  q.  c.f.,  brought 
on  the  19th  October  1835,  by  the  appellee  against  the  appel- 
lants, for  a  trespass  upon  a  tract  of  land  called  "Dividing," 
Upon  the  motion  of  both  parties,  a  warrant  of  re-survey  was 
issued,  and  the  defendants  pleaded  non  cul.  The  jury  found 
a  verdict  for  the  plaintiff  David  Brown. 

1st  EXCEPTION.  At  the  trial  of  the  cause,  the  plaintiff  offer- 
ed in  evidence  a  patent  for  the  tract  called  "Dividing,*9  dated 
17th  May  1695,  to  Mathias  Van  Bibber,  and  after  other  con- 
veyances, the  will  of  John  Dickson,  which  contained  the  fol- 
lowing clause: 

"Item. — It  is  my  will,  that  the  rest  and  residue  of  my  real 
and  personal  property,  shall  be  sold  by  ray  executor,  and  that 
my  real  property  be  sold  within  two  years  from  my  decease, 
and  to  be  rented  or  farmed  on  shares  by  my  executor,  until  a 
sale  is  made  of  the  said  real  property,  and  I  hereby  empower 
my  executor,  to  make  a  good  and  sufficient  deed  to  the  pur- 
chaser of  the  said  real  estate." 

This  will,  dated  23rd  January  1830,  upon  which  letters  tes- 
tamentary were  granted  the  6th  May 'following,  appointed 
Samuel  Rowland  executor. 

The  plaintiff  then  proved,  that  John  Dickson  died  seized  of 
that  part  of  "Dividing,11  conveyed  to  him  by  James  Miller, 
and  the  deed  from  Samuel  Rowland  to  Jlmos  Henshaw,  and  the 
plaintiff  Brown,  of  the  19th  March  1833,  reciting  a  sale  by  the 
said  executor,  in  execution  of  the  trust  reposed  in  him  on  the 
25th  November  1831,  of  his  testator's  part  of  "Dividing,"  to 
the  said  Henshaw  and  Brown  for  said  part. 

The  plaintiff  then  offered  to  prove  by  parol  testimony,  that 
the  said  sale  was  made  by  said  executor  in  November  1830, 
and  within  two  years  of  the  death  of  Dickson,  his  testator,  and 
that  possession  of  the  said  land,  was  given  under  said  sale 
within  that  period ;  and  also  gave  in  evidence  a  deed  of  par- 
tition, between  himself  and  Henshaw,  dated  the  19th  March 
1833. 


UP  MARYLAND.  477 


Harlan  vs.  Brown. — 1845. 


The  plaintiff  also  offered  evidence  to  prove,  that  the  alleged 
trespass  is  within  the  lines  of  the  patent  of  "Dividing."  And 
within  the  lines  of  the  deed  from  James  Miller  to  John  Dickson; 
and  that  the  deed  from  S.  Rowland  to  Ji.  Henshaw,  and  the 
plaintiff,  is  for  the  same  land  as  mentioned  in  the  deed  from 
Miller  to  Dickson,  and  that  the  alleged  trespass  is  upon  the 
land  conveyed  to  the  plaintiff,  by  the  deed  of  partition  between 
Jl.  Henshaw  and  the  plaintiff.  It  was  admitted,  that  the  several 
deeds  above  mentioned,  were  executed,  acknowledged  and 
recorded  according  to  the  formalities  required  by  law  to  pass 
real  estate,  and  that  the  will  of  John  Dickson  was  also  duly 
executed,  so  as  to  pass  real  estate. 

The  defendant  objected  to  the  admission  of  the  said  parol 
testimony,  in  relation  to  the  time  of  sale  made  by  the  said 
Rowland,  but  the  court,  (HOPPER  and  ECCLESTON,  A.  J.,) 
permitted  it  to  go  to  the  jury;  the  defendant  excepted. 

2ND  EXCEPTION.  In  addition  to  the  matters  stated  in  the 
first  bill  of  exceptions,  the  defendant  prayed  the  court  to  in- 
struct the  jury,  that  the  deed  offered  by  the  plaintiff,  from 
Samuel  Rowland  to  the  plaintiff,  and  Jlmos  Henshaw,  was  no 
evidence  of  title  in  the  plaintiff,  unless  they  should  further 
believe,  from  the  testimony,  that  it  was  executed  within  two 
years  from  the  death  of  the  said  Dickson,  which  instruction 
the  court  refused  to  give ;  the  defendant  excepted. 

SRD  EXCEPTION.  In  addition  to  the  matters  stated  in  the 
first  and  second  bills  of  exceptions,  the  defendant  prayed  the 
court  to  instruct  the  jury,  that  the  deed  offered  by  the  plaintiff, 
from  Samuel  Rowland  to  the  plaintiff  and  Jlmos  Henshaw,  is 
no  evidence  of  title  in  the  plaintiff,  unless  they  believe,  from 
the  testimony,  that  the  sale  by  the  said  Rowland  has  been 
confirmed  by  the  Orphans  court  of  Cecil  county,  and  notice  of 
the  time,  place,  terms  and  manner  thereof,  given  according  to 
law,  which  instruction  the  court  refused  to  give;  the  defendant 
excepted. 

The  second  appeal  was  taken  in  an  action  of  ejectment, 
brought  on  the  6th  March  1836,  by  the  appellants  against 
the  appellee,  for  two  other  tracts,  viz:  llSteeVs  Resurveyed," 


478  CASES  IN  THE  COURT  OF  APPEALS 


Ilarlan  vs.  Brown. — 1845. 


and  "Belle  Ville"  and  presented  the  same  questions  as  those 
presented  by  the  action  of  trespass,  2  q.  f.^  in  relation  to 
"Dividing;"  and  also  an  additional  question  as  to  the  right  to 
determine  the  variation  of  the  compass,  and  which  is  fully 
set  forth  in  the  opinion  of  this  court.  In  the  second  cause, 
the  verdict  and  judgment  was  for  the  appellee. 
Ilarlan  and  wife  prosecuted  both  appeals. 

The  causes  were  argued  before  ARCHER,  C.  J.,  DORSEY 
and  MARTIN,  J. 

By  GROOME  and  McLEAN  for  the  appellants,  and 
By  OTHO  SCOTT  and  CONSTABLE  for  the  appellees. 

MARTIN,  J.  delivered  the  opinion  of  this  court. 

The  cases  of  John  H.  Harlan  and  Margaret  Jl.  Harlan 
against  David  Brown,  and  John  H.  Harlan  and  Margaret  A. 
Marian's  lessees,  vs.  David  Brown,  were  presented  together. 

The  first  case  is  an  action  of  trespass,  quare  clausumfregit, 
the  other  an  ejectment.  John  H.  Harlan  and  wife,  were  the 
plaintiffs  below  in  the  action  of  ejectment,  and  the  defendants 
in  the  action  of  trespass.  At  the  trial  of  the  trespass  case? 
three  exceptions  were  taken  by  the  defendants  to  the  opinions 
of  the  court.  Three  exceptions  precisely  similar,  were  taken 
by  the  same  parties,  as  plaintiffs  in  the  action  of  ejectment, 
and  also  an  additional  exception. 

We  propose  to  examine  these  exceptions  in  the  order  in 
which  they  have  been  presented. 

By  the  second  item  of  the  will  of  John  Dickson,  it  is  pro- 
vided, that  the  residue  of  the  real  and  personal  estate  of  the 
testator,  be  sold  by  his  executor  within  two  years  from  his  de- 
cease. David  Brown  claimed  under  the  deed  executed  by  the 
executor  of  John  Dickson,  in  conformity  with  the  power  con- 
ferred on  him  by  the  will.  It  became  therefore  important  for 
him  to  prove,  that  the  sale  was  made  within  two  years  from 
the  death  of  the  testator,  both,  for  the  purpose  of  showing, 
that  the  authority  conferred  on  the  executor,  had  been  pro-  . 
perly  exercised,  and  that  the  sale  in  question,  was  not  embraced 


OF  MARYLAND.  479 


Harlan  vs.  Brown. — 1845. 


by  the  10th  section  of  the  act  of  Assembly  of  1831,  chap.  315. 
And  it  certainly  was  competent  to  the  party,  to  establish  by 
parol  evidence,  as  the  legal  and  appropriate  mode,  the  time  at 
which  this  sale  was  made.  This  forms  the  subject  of  the  first 
exception,  and  we  think  the  court  were  right  in  admitting  the 
evidence. 

Testimony  having  been  received  to  show,  that  the  sale  of 
the  property  in  dispute  had  been  made  by  Samuel  Rowland  to 
David  Brown,  within  two  years  from  the  death  of  Dickson,  the 
court  were  asked  to  instruct  the  jury,  that  the  deed  of  Rowland 
to  Brown  and  Henshaw,  was  no  evidence  of  title,  unless  they 
should  further  find,  that  it  was  executed  within  two  years  from 
the  death  of  Dickson.  This  instruction  the  court  refused  to 
grant,  and  presents  the  question  raised  by  the  second  excep- 
tion. We  concur  with  the  court  below,  in  the  opinion  express- 
ed by  them  in  this  exception,  for  the  plain  reason,  that  the 
validity  of  the  deed  from  the  executor  to  the  parties  claiming 
under  it,  depends  not  on  the  time  when  the  deed  was  exe- 
cuted, but  when  the  sale  was  made;  and  evidence  had  been 
offered,  to  establish  thefactum  of  the  sale  within  the  period 
prescribed  by  the  will.  The  power  of  sale  conferred  on  the 
executor,  was,  we  hold,  properly  executed  by  a  sale  of  the 
property  within  two  years  from  the  death  of  the  testator, 
although  the  deed  was  not  executed  by  him,  until  after  that 
period  had  elapsed. 

We  concur  also,  with  the  opinion  expressed  by  the  county 
court  in  the  third  exception.  There  was  no  law  making  the 
validity  of  the  sale  by  Samuel  Rowland,  as  the  executor  of 
Dickson,  depend  on  its  confirmation  by  the  orphans  court  of 
Cecil  county,  as  supposed  by  the  defendants'  prayer.  It  was 
not  embraced  by  the  act  of  Assembly  1831,  chap.  315,  sec. 
10,  because  the  sale  was  made  before  that  statute  went  into 
operation. 

It  follows  from  the  views  thus  expressed,  that  in  the  case  of 
John  H.  Harlan  and  Margaret  Jl.  Harlan  against  David  Brown, 
the  judgment  must  be  affirmed. 


480  CASES  IN  THE  COURT  OF  APPEALS 

Harlan  vs.  Brown. — 1845. 

The  only  remaining  question  to  be  examined,  is  that  pre- 
sented by  the  fourth  exception,  in  the  case  of  Harlem's  lessees 
against  David  Brown.  It  has  already  been  stated,  that  the 
three  first  exceptions  in  this  case,  are  similar  to  that  raised  in 
the  trespass  case,  between  the  same  parties.  We,  of  course, 
concur  with  the  county  court  in  the  opinions  expressed  by  them, 
in  those  exceptions.  But  we  dissent  from  the  instruction  given 
to  the  jury,  as  contained  in  the  fourth  exception. 

The  question  involved,  depended  entirely  on  the  true  loca- 
tion of  the  second  line  of  the  tract  of  land  called  "Dividing." 

This  court,  as  early  as  the  case  of  Rowland  and  Cromwell, 
1  H.  &f  J.  118,  in  affirming  the  opinion  of  the  general  court, 
decided,  "that  it  is  the  province  of  the  jury  to  determine  the 
true  location  of  the  lands  in  controversy,  from  the  evidence 
adduced  by  the  parties,  and  that  it  is  for  the  jury  to  decide,  on 
the  justice  and  propriety  of  allowing,  or  not  allowing  the  varia- 
tion of  the  compass,  and  the  rate  or  rule  of  such  allowance, 
according  to  the  evidence  in  the  cause."  And  in  Howard  vs. 
Hughes,  3  H.  &  J.  12,  the  Court  of  Appeals  say :  "It  is  the 
acknowledged  and  exclusive  province  of  the  jury,  to  decide  on 
the  variation  of  the  compass,  and  to  make  such  allowance  as 
corresponds  with  the  proof,  and  will  advance  justice.  The 
juries,  in  fixing  the  variation  of  the  compass,  are  not  confined 
to  any  certain  rules,  but  are  governed  by  the  circumstances 
existing  in  the  case.  The  juries,  in  some  cases,  have  refused 
to  make  any  allowance,  in  others,  they  have  allowed  at  the 
rate  of  one  degree  for  every  twenty  years,  and  in  others,  they 
have  been  influenced  by  ancient  runnings  and  proof  of  pos- 
sessions." 

What  then,  is  the  character  of  the  instruction  which  the 
court  were  desired  to  give  in  the  fourth  exception?  They  were 
asked  to  direct  the  jury,  "that  if  they  believed  that  the  boun- 
dary, at  the  end  of  the  first  line  of  'Dividing,7  was  at  the  place 
the  defendant  had  located  the  same,  and  that  the  division  fen- 
ces, between  the  former  and  present  owners  of  the  land  called 
'•Dividing,'1  and  the  land  called  'Steele's,1  and  the  other  adja- 
cent lands,  were  on  the  second  line  of ' Dividing,'  as  located  by 


OF  MARYLAND.  481 


Hardesty  vs.  Wilson.— 1845. 


the  defendants;  and  should  further  believe,  that  in  former  run- 
nings of  said  line,  in  the  life  time  of  Stephen  Porter,  it  ran  where 
the  defendants  now  have  located  it;  that  then,  such  facts  were 
better  evidence  for  the  jury,  to  determine  what  allowance  should 
be  made,  to  correct  the  variation  of  the  needle  in  running  said 
line  of  'Dividing,'  than  the  theory  of  allowing  one  degree  for 
every  twenty  years."  This  instruction  the  court  below  gave, 
and  in  doing  so,  invaded,  we  think,  the  province  of  the  jury. 
It  is  for  the  court  to  decide  on  the  admissibility  of  evidence; 
but  the  comparative  value,  or  weight  of  testimony,  is  a  ques- 
tion for  the  consideration  of  the  jury,  and  it  was  for  that  tribu- 
nal, and  not  the  court,  to  determine,  whether  the  facts  relied  on 
by  the  defendants,  were  better  evidence  to  guide  them,  in  cor- 
recting the  variation  of  the  compass,  than  the  rule  sometimes 
adopted,  of  allowing  one  degree  for  every  twenty  years.  The 
doctrine  announced  by  the  Court  of  Appeals,  in  the  cases  refer- 
red to,  is,  that  whether  any  allowance  is  to  be  made  for  the 
variation  of  the  compass,  and  if  so,  the  rule  or  law  by  which 
that  allowance  is  to  be  ascertained,  is  a  question  of  fact  for 
the  determination  of  the  jury,  upon  all  the  circumstances  of 
the  case.  The  judgment  of  the  county  court,  in  the  case  of 
John  H.  Harlan,  and  Margaret  Jl.  Marian's  lessees,  against 
David  Brown,  is  therefore  reversed,  and  a  procedendo  awarded. 

JUDGMENT  AFFIRMED  IN  ONE  CASE,  AND  REVERSED, 
WITH  A  PROCEDENDO  IN  THE  OTHER. 


JOHN  HARDESTY  AND  MATTHEW  HARDESTY  vs.  JOHN  F. 
WILSON. — June  1845. 

A  judgment  creditor  issued  afi.fa.,  and  sold  the  land  of  his  debtor.  The  sheriff, 
without  his  consent,  gave  time  to  the  purchaser  to  pay  for  the  land,  and  the 
purchase  money  not  being  all  paid,  the  creditor  ordered  the  sheriff  to  proceed 
to  a  re-sale  of  the  property  levied  on.  The  debtor  is  not  entitled  to  an  injunc- 
tion to  stay  such  re-sale. 

If  the  sheriff  give  time  to  a  purchaser  at  his  sale,  to  pay  the  purchase  money, 
without  the  assent  of  the  creditor,  the  latter  is  not  bound  by  it, 

61    v.2 


482  CASES  IN  THE  COURT  OF  APPEALS 

Hardesty  vs.  Wilson. — 1845. 

In  a  proceeding  in  equity  where  the  sheriff  is  no  party,  the  conduct  of  that 
officer  cannot  be  inquired  into. 

It  does  not  follow,  that  because  a  bidder  is  found  upon  an  offer  for  sale  of  pro. 
perty,  levied  on  under  a.fi.fa.,  and  he  makes  the  highest  bid,that  the  supposed 
sale  to  him  discharges  so  much  of  tho  debt. 

The  bidder  acquires  no  title  to  tho  thing  purchased,  but  by  payment  of  tho  pur- 
chase money,  and  if  he  fails  to  do  this  within  a  reasonable  time,  a  re-sale  may 
be  lawfully  made. 

The  seizure,  upon  nfi.fa.,  is  not  a  satisfaction  of  tho  debt. 

APPEAL  from  the  Court  of  Chancery. 

On  the  7th  January  1845,  the  appellants  filed  their  bill  alleg- 
ing, that  a  certain  John  F.  Wilson,  recovered  a  judgment  against 
your  orators,  in,  &c.,  at,  &c.,  for  the  sum  of  $1500,  &c.;  that 
the  said  judgment  was  obtained  upon  a  note,  given  by  said 
John  Hardesty  to  said  /.  F.  W.,  with  Matthew  Hardesty  as  his 
security,  for  the  purchase  of  a  tract  of  land  called  "Sandy 
Point"  and  for  which  he,  the  said  John,  bargained  with  a 
certain  ZachariahMcCeney,  but  understanding  that  the  title  to 
the  property  was  in  said  Wilson,  he,  together  with  said  Mc- 
Ceney  and  M.  H.,  one  of  your  complainants,  went  to  the  house 
of  said  Wilson,  and  gave  his  note  for  the  purchase  money, 
with  M.  H.  as  his  surety,  with  a  credit,  as  be  believes,  of  two 
years.     He,  the  said  /.  H.,  further  states  to  your  honors,  that 
in  the  succeeding  summer,  (he  thinks  in  August  1841,)  he 
sold  his  title  in  said  land  to  a  certain  John  Hall,  before  he  took 
possession,  with  the  knowledge  and  consent  of  said  J.  F.  W., 
who  agreed  to  take  said  Hall,  as  purchaser  in  lieu  of  himself; 
and  said  Hall,  some  short  time  afterwards,  when  he  took  pos- 
session of  the  land,  paid  said  W.  part  of  the  purchase  money, 
in  presence  of  said  M.  H.,  one  of  your  complainants,  and  that 
said  Hall  has  been  since  that  time,  and  is  now  in  possession 
of  said  land;  that  said  J.  F.  W.,  has  sued  out  of  Jlnne  Jlrun- 
del  county  court,  a  writ  of  fieri  facias  upon  the  aforesaid  judg- 
ment, and  that  the  sheriff  of  said  county,  to  whom  said  exe- 
cution was  directed,  levied  the  same  upon  the  said  tract  of 
land  called  "  Sandy  Point,"  and  also  upon  another  tract  of  land 
called  "Gravelly  Hill"  the  property  of  said  M.  H.;  and  that 
on  or  about  the  2nd  November  1844,  sold  the  said  tract  of  land 


OF  MARYLAND.  483 


Hardosty  vs.  Wilson — 1845. 


called  "Sandy  Point,"  at  public  sale,  to  a  certain  Jeremiah 
Wells,  for  the  sum  of  $1200;  that  said  Wilson  was  present  at 
said  sale,  and  was  next  highest  bidder  to  said  Jeremiah 
Wells,  his  bid  being  only  ten  dollars  under  that  of  said  Wells, 
on  which  said  land  was  sold ;  that  said  Wilson,  as  they  have 
heard,  and  believe,  gave  time  to  said  Wells  for  the  payment 
of  the  purchase  money,  and  as  your  orator  Matthew  Hardesty, 
avers,  from  information  from  said  Wells,  agreed  to  meet  him 
at  the  city  of  Annapolis,  at  some  future  day,  to  pay  the  pur- 
chase money,  and  receive  his  title;  that  your  orators  have 
heard,  and  believe,  that  said  Wells  attended  at  Annapolis  on 
the  day  appointed,  prepared  with  the  money  to  make  his  pay- 
ment, as  agreed  upon  with  said  Wilson,  but  that  said  Wilson 
did  not  attend. 

Your  orator,  M.  H.,  further  states,  that  inasmuch  as  the 
amount  of  the  sale  was  insufficient  to  pay  the  debt,  he  asked 
time  of  said  Wilson  to  pay  the  balance,  and  was  allowed  by 
him,  ten  or  fifteen  days,  within  which  time,  he  paid  the  balance, 
amounting  to  $485.83,  to  Alexander  Randall,  attorney  at  law, 
as  will  appear  by  his  receipt  for  said  balance;  that  the  sheriff 
of  Anne  Arundel  county,  has  again  advertised  both  tracts  of 
land,  "Sandy  Point"  and  "Gravelly  Hill"  for  sale,  at,  &c., 
on  Tuesday,  21st  January,  to  satisfy  said  judgment,  and  being 
advertised  that  said  proceedings  is  contrary  to  law,  and  having 
no  remedy,,  but  by  the  aid  of  the  Court  of  Chancery,  they 
humbly  pray  your  honor,  to  grant  to  your  orators,  a  writ  of 
injunction  on  said  judgment  and  execution,  directed  to  said 
John  F.  Wilson,  and  the  clerk  and  sheriff  of  Jlnne  Arundel 
county,  commanding  them  to  stay,  and  surcease  all  further  and 
other  proceedings  in  said  judgment  and  execution,  at  least, 
against  the  tract  of  land  called  "Gravelly  Hill"  if  not  against 
both  tracts,  and  against  your  said  orators,  until  the  further 
order  of  this  court,  as  also  a  writ  of  subpoena,  &c. 
The  complainants  exhibited  with  their  bill. 

1.  A  short  copy  of  the  judgment  of  the  appellee  against 
the  appellants,  for  $1500.     October  term  1843. 

2.  The  docket  entries  of  thej^.ya.  on  said  judgment. 


484  CASES  IN  THE  COURT  OF  APPEALS 

Hardesty  vs.  Wilson.— 1845. 

3.  Memorandum  of  the  sale  of  Sandy  Point  to  J.  Wells, 
for  $1200,  made  by  the  deputy  sheriff,  2nd  November  1844. 

4.  The  statement  of  Matthew  Hardesty's  debt,  for  taxes, 
interest,  and  balance  of  John  F.  Wilson's  claim  of  $485.83, 
amounting  to  $516.35,  with  the  following  receipt  thereon: 

"Received  the  above  $485.83,  for  Thomas  S.  Alexander, 
the  attorney,  to  deposit  to  his  credit. 

13th  November  1844.  A.  RANDALL" 

The  Chancellor,  on  filing  bond  by  the  complainants,  ordered 
an  injunction. 

The  answer  of  the  appellee,  filed  on  the  22nd  January  1845, 
admitted,  that  he  did  recover  judgment  against  the  complain- 
ants, as  in  his  said  bill  is  stated,  and  by  the  short  copy  thereof, 
filed  by  the  complainants  appear.  He  further  admits,  that  the 
said  judgment  was  recovered  on  a  note  or  obligation  of  the 
said  complainants,  given  to  him  to  secure  the  purchase  money 
of  a  tract  of  land  called  Sandy  Point,  sold  by  him  to  John 
Hardesty.  He  also  admits,  that  afterwards,  the  complainants 
agreed  to  sell  said  land  to  one  John  Hall,  and  put  said  Hall 
in  possession  thereof;  that  this  defendant,  on -being  applied  to 
for  the  purpose,  verbally  expressed  his  willingness  to  accept 
said  Hall  as  purchaser,  provided  he  would  make  to  the  de- 
fendant, a  certain  payment  which  has  never  been  made,  and 
consequently,  he  has  had  nothing  to  do  with  said  Hall ;  that 
said  arrangements,  being  oral,  only,  and  not  reduced  into 
writing,  is  void,  by  the  statute  on  which  the  defendant  relies. 
He  further  insists,  that  it  was  entered  into  prior  to  the  recovery 
of  the  judgment  aforesaid,  before  the  action  was  brought  on 
said  note,  and  if  it  afforded  matter  of  defence  to  the  complain- 
ants, against  this  defendant,  such  defence  ought  to  have  been 
taken  at  law,  and  the  said  judgment  is  relied  on  by  the  defen- 
dant, against  any  relief  sought  on  the  ground  thereof.  And 
this  defendant,  further  answering,  states,  that  said  Hall  aban- 
doned possession  of  said  premises  upwards  of  twelve  months 
ago,  and  the  same  was  resumed  by  the  said  John  Hardesty, 
who  rented  the  same,  and  is  now  claiming  the  last  year's  rent 
due  from  the  actual  *  tenant  thereof.  And  this  defendant  ad- 


OF  MARYLAND.  485 


Ilardesty  vs.  Wilson. — 1845. 


raits,  that  having  sued  out  a  fieri  facias  on  said  judgment,  the 
same  was  laid  on  the  said  tract  called  Sandy  Point,  and 
another  tract  called  Gravelly  Hill,  and  being  exposed  to  sale 
by  the  sheriff  of  Anne  Arandel  county,  the  tract  called  Sandy 
Point  was  bid  in  by  one  Jeremiah  Wells,  as  stated  in  said  bill ; 
and  he  admits,  that  exhibit  B  was  drawn  up  and  signed  by  the 
deputy  of  said  sheriff,  as  stated  in  said  bills.  He  further  ad- 
mits, that  the  said  Wells  was  not  prepared,  at  the  time,  to  pay 
the  purchase  money,  but  expressing  a  willingness  to  pay  as 
soon  as  the  sheriff  could  make  out  his  title,  the  actual  pay- 
ment was  postponed,  and  the  writ  was  returned  by  the  deputy 
to  the  sheriff;  that  it  is  usual  to  give  such  indulgences  to  pur- 
chasers at  sheriff's  sales,  in  order  that  the  returns  and  con- 
veyances may  be  prepared  and  executed  when  the  money  is 
paid,  and,  consequently,  in  the  present  case,  the  defendant 
was  not  asked,  nor  did  he  give  his  assent  to  the  arrangement. 
He  further  admits,  that  he  heard,  from  time  to  time,  that  the 
said  Wells  delayed  payment  of  the  purchase  money,  on  the 
pretext,  that  he  was  not  satisfied  with  the  title  to  said  proper- 
ty, and  that  on  being  applied  to  by  the  counsel  for  said  Wells, 
this  defendant  expressed  his  willingness  to  show  his  title  to 
said  land,  and  to  convey  the  same  on  receiving  his  purchase 
money,  as  aforesaid;  that  all  the  indulgence  which  was  en- 
joyed by  said  Wells  was  granted  him  by  the  sheriff,  and  on 
his,  the  sheriff's,  responsibility;  that  this  defendant  was  ad- 
vised he  could  not  coerce  the  sheriff,  until  the  return  day  of 
the  writ,  and  further,  that  it  would  be  better  to  wait  a  few 
days  with  the  sheriff  and  purchaser,  in  order  to  have  the  diffi- 
culty removed,  than  to  insist  on  a  more  rigid  procedure.  But 
finding  at  last,  that  the  said  Wells  was  trifling,  he  required 
the  sheriff  to  proceed,  by  a  re-sale,  or  otherwise,  to  make  the 
amount  due  on  the  execution,  and  the  property  was  advertised 
as  in  said  bill  is  stated.  He  admits,  that  he  received  through 
his  attorney,  the  sum  of  $485.83,  or  thereabouts,  on  account 
of  said  execution ;  but  he  was  informed,  by  his  said  attorney, 
and  believes  it  was  received  on  account  generally,  his  said 
attorney  refusing,  or  declining  to  look  to  said  Wells  as  pur- 


486  CASES  IN  THE  COURT  OF  APPEALS 

Ilardcsty  rs.  Wilson. — 1845. 

chaser  for  the  amount  of  his  bid,  or  to  recognize  his  purchase 
until  the  money  was  ready  to  be  paid  to  him.  This  defendant 
therefore  insists,  that  said  sale  by  the  sheriff,  under  the  cir- 
cumstances aforesaid,  does  not  bind  him,  or  in  any  manner 
impair  his  right  to  make  the  money  yet  due  on  his  execution 
aforesaid  ;  and  that  as  the  said  purchaser  has  failed  to  pay  the 
purchase  money  bid  by  him,  as  aforesaid,  he  acquired  no  title 
to  said  land.  Wherefore,  this  defendant  prays  the  injunction 
granted  in  this  case  may  be  dissolved,  and  he  be  dismissed 
with  costs,  &c. 

On  the  10th  February  1845,  the  defendant  moved  for  a  dis- 
solution of  the  injunction,  and  in  April  1845,  the  complainants 
filed  exceptions  to  the  sufficiency  of  the  answer.  At  the  hear- 
ing of  the  motion  to  dissolve  the  injunction,  the  Chancellor 
(BLAND,)  over-ruled  the  exceptions,  and  sustained  the  motion. 

The  complainants  appealed  to  this  court. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 
CHAMBERS,  MAGRUDER  and  MARTIN,  J. 

By  MURRAY  and  STEELE  for  the  appellants,  and 
By  WELLS  and  ALEXANDER  for  the  appellees. 

MAGRUDER,  J.,  delivered  the  opinion  of  this  court. 

Every  thing  in  the  bill  of  complaint,  which  may  be  consid- 
ered as  constituting  the  equity  of  the  complainant's  case,  seems 
to  have  been  satisfactorily  answered.  If  it  was  improper  for 
the  sheriff,  to  give  the  indulgence  which  he  gave  to  the  pur- 
chaser, it  was  given  not  at  the  instance,  or  with  the  consent  of 
the  plaintiff  at  law.  In  this  suit,  to  which  the  sheriff  is  no 
party,  we  cannot  inquire  into  the  conduct  of  that  officer.  The 
law  of  the  case,  2  H.  fy  G.  262,  cannot  be  questioned. 

As  to  the  alleged  payment  to  Mr.  Randall,  it  can  entitle  the 
complainant  only  to  a  credit  for  so  much  as  Randall,  acting 
for  the  plaintiffs'  attorney,  received. 

It  does  not  follow,  that  because  a  bidder  is  found,  and  he 
makes  the  highest  bid,  that  the  supposed  sale  to  him,  discharges 
so  much  of  the  debt.  The  highest  bidder  acquires  no  title  to 


OF  MARYLAND.  487 

The  State  vs.  Mayhew. — 1845. 

the  thing  purchased,  but  by  payment  of  the  purchase  money, 
and  if  he  fail  to  do  this  within  a  reasonable  time,  a  re-sale  may 
lawfully  be  made.  We  discover  nothing  in  this  case,  which 
entitles  the  complainant  to  relief  in  equity. 

With  respect  to  the  point,  for  which  most  of  the  authori- 
ties were  cited  by  the  solicitors  of  the  complainants,  this  court 
decided  otherwise,  in  the  case  of  Sasser  ag't.  Walker's  ex'crs, 
5  G.  #  /.  102.  But  surely,  it  would  not  follow,  that  a  sale  of 
the  property  on  which  the  first  levy  is  made,  can  be  hindered 
by  the  defendant  at  law.  If,  as  it  is  supposed,  the  seizure  is 
a  satisfaction  of  the  debt,  the  defendant  would  no  longer  have 
any  interest  in  it,  and  could  not  complain  that  a  sale  of  it  was 
about  to  be  made. 

The  order  of  the  Chancellor,  so  far  as  it  over-rules  excep- 
tions filed  to  the  answer,  cannot  be  before  us  at  this  time. 

So  much  of  the  order  as  dissolves  the  injunction,  is  affirmed, 
appeal  from  the  rest  is  dismissed. 

ORDER  AFFIRMED   AS  TO  INJUNCTION. 


THE  STATE  OF  MARYLAND  vs.  WILLIAM  E.  MAYHEW,  PRE- 
SIDENT OF  THE  FARMERS  AND  PLANTERS  BANK  OF  BAL- 
TIMORE.— June  1845. 

The  act  of  March  session  1841,  ch.  23,  provided  for  a  general  assessment  of 
all  the  real  and  personal  property  within  this  State,  and  directed,  that  the 
capital  stock  of  the  several  banks,  and  other  incorporated  institutions  of 
the  State,  should  be  assessed  to  its  owners  at  its  cash  value,  and  taxed  at 
one-fourth  of  one  per  centum. 

All  the  property  of  such  banks,  &c.,  the  stock  of  which  was  thus  assessed 
and  taxed,  being  exempted  from  taxation,  the  taxation  of  such  stock  is 
constitutional. 

To  relievo  the  proprietors  of  such  stock,  and  facilitate  the  collection  of  the 
tax  thus  imposed,  the  act  of  1843,  ch.  289,  made  it  the  duty  of  the  presi- 
dent, (or  other  proper  officer)  of  such  corporations,  seini-annually,  to  set 
apart,  and  withhold  out  of  the  dividends,  or  profits,  the  amount  of  the  tax 
levied  on  such  stocks,  and  pay  the  same  to  the  treasurer  of  the  State. 

The  act  of  1843,  is  a  legitimate  exercise  of  power, -incident  to  tho  sovereign 
right  of  levying  taxes  for  the  support  of  government. 


488  CASES  IN  THE  COURT  OF  APPEALS 

The  State  vs.  Mayhew  — 1845. 

By  the  act  of  1843,  the  placo  and  mode  of  levying  and  collecting  such  tax 
are  changed;  it  was  no  longer  collectable  where  the  stockholders  resided; 
it  ceased  to  be  a  debt  or  duty  chargeable  on  them  :  they  were  exonerated 
from  all  personal  liability  for  its  payment :  the  stock,  itself,  stood  exempt 
from  its  payment,  and  the  security  of  the  State  therefor,  became  con- 
tingent. 

For  the  recovery  of  such  tax,  the  State  has  no  lien  on  the  stock ;  can  main- 
tain no  action  at  law,  either  against  the  stockholder,  bank,  or  any  officer 
of  the  bank,  in  his  official  character ;  nor  an  action  for  money,  had  and 
received  against  any  such  officer,  in  his  individual  capacity. 

But  the  State  has  a  legal  right  to  be  paid  out  of  the  dividends  declared,  or 
profits  made,  the  amount  of  the  tax  on  the  assessed  value  of  such 'stock, 
and  for  the  assertion  of  such  right,  having  no  appropriate  legal  remedy,  is 
entitled  to  the  writ  of  mandamus  against  the  president  or  other  proper 
officer  of  anj  such  corporation. 

The  president  of  a  bank,  &c.,  is  not,  by  the  nature  of  the  duty  imposed  upon 
him,  by  the  act  of  1843,  created  a  State  officer,  a  collector  of  the  taxes  due 
by  the  stockholders  of  the  bank. 

The  object  of  the  act  was  to  command  such  president,  he  being  already  in 
possession  thereof,  to  pay  to  the  treasurer  of  the  State  the  amount  of  State 
taxes  in  his  hands,  which,  under  the  act  of  1843,  he  had  no  authority  to 
pay  to  any  other  person. 

The  General  Assembly  has  the  right,  by  legislation,  to  impose  upon  all  pro- 
perty  within  the  State,  a  just  and  proportionately  equal  public  tax ;  to 
provide  all  means,  details  necessary  for  its  speedy  collection,  by  summary 
process  of  execution,  or  other  reasonable  or  available  means. 

A  power  exercised  by  the  General  Assembly,  from  the  adoption  of  our  Con- 
stitution  till  the  present  time,  a  period  of  nearly  seventy  years,  ought  to  be 
deemed  almost  conclusive  evidence  of  its  possession  by  that  body. 

A  cotcmporaneous  construction  of  the  constitution  of  such  duration,  con- 
tinually practised  under,  and  through  which,  many  rights  have  been  ac- 
quired, ought  not  to  bo  shaken,  but  upon  the  ground  of  manifest  error  and 
cogent  necessity. 

Where  the  law  provided  for  the  valuation  of  bank  stock,  and  it  had  been 
valued  accordingly,  and  an  act  of  Assembly  prescribed  the  rate  of  taxa- 
tion, and  directed  who  should  pay  it,  it  cannot  be  said  that,  the  tax  on 
such  stock  has  not  been  levied :  it  is  a  legislative  levy,  wholly  irrespective 
of  the  ownership  of  the  stock. 

As  soon  as  a  dividend  is  declared,  the  right  of  the  State  to  so  much  of  it  as 
is  required  to  be  paid  on  account  of  the  stock  taxed,  is  fixed  and  indefeasible, 
and  over-rides  all  other  liens,  claims  or  rights,  by  whomsoever  asserted,  un- 
less, perhaps,  it  were  in  conflict  with  a  preferred  claim  of  the  United 
Stales. 

A  citizen  is  not  necessarily  discharged  from  the  obligation  to  perform  a  duty 
enjoined,  by  law,  for  tho  public  good,  because  it  imposes  on  him  some  ad- 
ditional labor,  trouble  und  expense ;  as  to  perform  militia  duty,  vote  at 


OF  MARYLAND.  489 


The  State  vs.  Mayhew.— 1845. 


the  election  of  public  officers,  furnish  true  statements  to  assessors,  obey 
the  summons  of  executive  officers,  or  arrest  felons :  in  these,  and  other  in. 
stances,  the  citizen  must  obey  the  law. 

APPEAL  from  Baltimore  County  Court. 

This  was  an  application  for  a  writ  of  Mandamus,  upon  the 
petition  of  the  State.  It  alleged,  that  the  General  Assembly 
of  Maryland,  by  the  act  of  1841,  ch.  23,  entitled,  "An  act  for 
the  general  valuation  and  assessment  of  property  in  this  State, 
and  to  provide  a  tax  to  pay  the  debts  of  the  State;"  among 
other  things  enacted,  that  all  stocks  or  shares,  in  any  bank  or 
company,  incorporated  by  the  said  State,  together  with  all 
other  property  thereby  subjected  to  assessment  and  taxation, 
should  be  valued  agreeably  to  the  directions  of  said  act,  and 
chargeable  according  to  such  valuation,  with  the  public  assess- 
ment; which  said  assessment  or  tax,  by  the  State  of  Mary- 
land, was,  by  the  said  act  of  Assembly,  fixed  at  twenty  cents, 
or  one-fifth  of  one  per  cent,  in  every  hundred  dollars  worth  of 
assessable  property,  for  each  and  every  year  thereafter,  to  be 
collected  as  therein  prescribed;  and,  that  afterwards,  by  ano- 
ther act  of  the  General  Assembly  of  Maryland,  made  and 
passed  at  December  session  1841,  ch.  328,  a  further  addi- 
tional annual  tax,  of  five  cents  in  the  hundred  dollars,  to  be 
levied  and  collected  in  the  same  manner  as  the  first  mentioned 
tax,  was  imposed  upon  all  the  property  assessed  by  the  first 
mentioned  act  of  Assembly,  the  said  taxes  collectively  amount- 
ing to  twenty-five  cents,  or  one-fourth  of  one  per  cent,  annu- 
ally, in  every  hundred  dollars  worth  of  such  property. 

Your  petitioner  further  states,  that  by  the  second  section  of 
the  said  first  mentioned  act,  the  city  of  Baltimore,  in  said  State, 
was  divided  into  assessment  districts,  as  therein  specified;  that 
by  the  ninth  section  thereof,  it  was  declared  to  be  the  duty  of 
the  assessors,  appointed  by  said  act,  to  value  all  such  assessa- 
ble property  at  its  full,  cash  value,  in  the  names  of  the  owners 
thereof  respectively;  that  by  the  sixteenth  section  thereof,  it 
was  enacted,  that  for  the  purpose  of  valuing  the  stock  of  bank- 
ing, and  other  private  corporations,  held  by  non-resident  stock- 
holders, it  was  thereby  declared  and  understood,  that  the  stock 
62  v.2 


490  CASES  IN  THE  COURT  OP  APPEALS 

The  State  vs.  Mayhew.— 1845. 

of  a  banking,  insurance,  or  other  corporation,  usually  termed  a 
moneyed  institution,  should  be  situated  at  the  place  in  which 
the  principal  office  for  transacting  the  business  of  such  corpo- 
ration should  be  situated,  and  for  the  effectual  collection  of  the 
taxes  assessed  on  the  stock  of  private  corporations,  held  by 
non-residents,  it  was  enacted,  by  the  seventeenth  section  there- 
of, among  other  things,  that  the  stock  of  corporations,  liable 
to  assessment  under  said  act,  held  by  persons,  non-residents  of 
said  State,  should  be  valued  at  its  actual  cash  value,  to,  and 
in  the  name  of  such  stockholders  respectively;  but,  that  the 
tax  assessed  on  said  stock  should  be  levied  and  collected  from 
said  corporation,  unless  paid  by  such  stockholders,  and  should 
be  charged  to  such  stockholders  respectively,  and  be  a  lien  on 
their  respective  stocks :  that  by  another  act  of  the  General 
Assembly  of  Maryland ,  made  and  passed  at  December  session 
1841,  ch.  281,  it  was  made  the  duty  of  the  president,  or  other 
proper  officer  of  every  bank,  or  other  private  corporation  in 
the  said  State,  to  set  apart  and  withhold,  out  of  the  dividend 
of  the  stock  of  such  corporations,  the  amount  of  the  tax  levied 
by  the  first  mentioned  act  semi-annually,  and  pay  the  same  to 
the  collector  of  the  county,  city,  or  district,  in  which  such  bank 
or  corporation  might  be  situated  :  that  the  General  Assembly 
of  Maryland,  in  substitution  for  the  former  enactments  on  the 
subject,  at  its  December  session  1843,  made  and  passed  an 
act,  entitled,  "An  act  entitled  a  supplement  to  the  act  entitled 
an  act  to  facilitate  the  collection  of  a  portion  of  the  tax  levied 
in  pursuance  of  the  act  passed  at  March  session  1841,  ch.  23, " 
wherein  it  is  enacted,  that  it  should  be  the  duty  of  the  presi- 
dent, or  other  proper  officer  of  the  banks,  and  of  all  other  of 
the  incorporated  institutions  of  this  State,  semi-annually,  after 
the  passage  of  the  said  act,  (which  passed  on  the  8th  March 
1844,)  to  set  apart,  and  withhold,  out  of  the  dividends  or  pro- 
fits, when  dividends  are  not  declared  on  the  stock  of  said 
banks,  or  other  incorporated  institutions,  the  amount  of  the 
tax  levied  on  the  stocks  of  said  banks,  and  other  incorporated 
institutions,  under  the  act  of  March  session  1841,  ch.  23,  and 
its  supplements,  without  reference  to  the  place  of  residence  of 


OP  MARYLAND.  491 


The  State  vs.  Maj  hew.— 1845. 


the  stockholders  therein,  and  to  pay  the  said  tax  to  the  trea- 
surer of  the  said  State,  who  should  give  proper  receipts 
therefor:  that  at  the  time  of  the  passage  of  the  first  men- 
tioned act  of  Assembly,  there  was,  and  from  thence  hitherto 
has  been,  a  certain  bank  of  the  said  State,  duly  incorporated 
by  the  laws  of  the  said  State,  under  the  name  and  style  of 
the  Farmers  and  Planters  Bank  of  Baltimore,  and  that  its 
principal  office  for  the  transaction  of  its  business  then,  was 
and  is  situated  in  the  said  city  of  Baltimore,  in  the  State 
aforesaid,  in  the  fourth  assessment  district  of  said  city;  and 
that  by  the  force  and  exigency  of  said  first  mentioned  act,  the 
stock  of  said  bank  then  was,  and  is  situated  in  said  city  and 
district,  and  that  William  E.  Mayhew,  Esq.,  of  the  city  of 
Baltimore,  from  thence  hitherto  has  been,  and  yet  is,  the  pre- 
sident of  the  said  bank. 

Your  petitioner  further  states,  that  shortly  after  the  passage 
of  the  said  first  mentioned  act  of  Assembly,  the  stock  of  the 
said  bank  was  duly  valued  by  the  proper,  then  assessors,  un- 
der said  act,  at  the  city,  and  assessment  district  aforesaid,  and 
that  twenty-three  thousand,  four  hundred  and  twenty-five 
shares  of  the  stock  of  said  bank,  being  the  number  of  asses- 
sable shares,  were  then,  by  them,  valued  at  $19.50  a  share, 
being  the  cash  value  thereof,  amounting,  altogether,  to  the  sum 
of  $456,787.50,  and  that  the  same  valuation,  under  the  said 
act,  has  ever  since  subsisted,  and  is  now  in  force;  that  at  the 
time  of  the  passage  of  the  last  mentioned  act  of  Assembly,  of 
December  session  1843,  and  ever  since  the  said  shares  of 
stock,  so  valued  as  aforesaid,  were,  and  are  liable  to  pay  the 
said  taxes,  under  the  two  first  above  mentioned  acts  of  Assem- 
bly, to  the  said  State,  amounting,  annually,  to  $1141.96;  and 
that  since  the  passage  of  the  said  last  mentioned  act  of  Assem- 
bly, the  said  bank  has  made  great  profits,  and  has  declared 
three  several  dividends,  that  is  to  say,  a  dividend  on  the  1st 
July  1844,  and  dividends  on  the  1st  day  of  January  and  July 
respectively,  in  the  year  1845,  each  of  which  said  dividends,  far 
exceeded  the  amount  of  such  taxes  due  on  the  said  shares'of 
stock  at  the  time  such  dividend  was  declared  :  that  by  force  of 


492  CASES  IN  THE  COURT  OF  APPEALS 

The  State  vs.  Mayhcw.— 1845. 

the  last  mentioned  act  of  Assembly,  it  has  been,  and  is,  the 
duty  of  the  said  Wm.  E.  Mayhew,  as  such  president  of  the  said 
bank  and  its  proper  officer  in  that  behalf,  ever  since  the  passage 
of  such  act,  semi-annually  to  set  apart  and  withhold,  out  of 
such  dividends  or  profits,  the  sum  of  $570.98,  being  the  moiety 
of  the  taxes,  annually  since  accruing  and  levied  on  the  said  stock 
at  such  valuation  as  aforesaid,  and  pay  the  same  to  the  trea- 
surer of  the  said  State,  upon  his  proper  receipts  therefor,  for 
the  benefit  of  your  petitioner;  but  although  the  said  treasurer 
has  always  been,  and  is,  ready  and  willing  to  give  such  receipts 
therefor,  the  said  William  E.  Mayhew,  so  being  such  president 
of  the  said  bank,  as  aforesaid,  has  utterly  refused,  and  still 
refuses,  to  comply  with  the  exigencies  of  the  said  last  men- 
tioned act,  and  semi-annually  to  set  apart  and  withhold  such 
last  mentioned  sum  out  of  such  dividends  or  profits  for  such 
taxes  as  aforesaid,  and  pay  the  same  over  to  the  said  treasurer 
of  the  said  State,  for  the  benefit  of  your  petitioner,  and  the 
sum  of  $1712.94,  for  such  taxes,  as  aforesaid,  accruing  since 
the  said  passage  of  the  said  last  mentioned  act,  remains  in 
arrear,  and  wholly  unpaid  to  the  said  treasurer  of  the  said 
State.  Prayer  for  a  writ  of  Mandamus,  to  be  directed  to  the 
said  Wm.  E.  Mayhew  of  the  city  of  Baltimore,  in  the  State  of 
Maryland,  President  of  the  Farmers  and  Planters  Bank  of 
Baltimore,  commanding  and  enjoining  him,  according  to  the 
exigency  of  such  last  mentioned  act  of  Assembly,  semi-annu- 
ally to  set  apart  and  withhold  out  of  the  dividends,  or  profits, 
when  dividends  are  not  declared  upon  the  said  shares  of  stock 
so  valued  as  aforesaid,  the  sum  of  $570.98,  being  the  amount 
of  the  taxes  levied  on  the  said  shares  of  stock  of  the  said  bank, 
under  the  act  of  March  session  1841,  ch.  23,  and  its  supple- 
ments, and  pay  over  the  same  to  the  treasurer  of  the  State  of 
Maryland,  upon  his  proper  receipt  therefor;  and,  also,  to  pay 
over  to  the  said  treasurer  of  the  State  of  Maryland  the  said 
sum  of  $1712.94,  for  such  taxes  on  the  said  shares  of  stock  so 
remaining  in  arrear  and  unpaid,  as  aforesaid,  upon  his  proper 
receipt  therefor,  according  to  the  exigency  of  such  act  of 
assembly. 


OF  MARYLAND.  493 


The  State  vs.  Mayhew.— 1845. 


And,  thereupon,  on  motion  of  the  State  of  Maryland,  afore- 
said, the  county  court,  (LEGRAND,  A.  J.,)  passed  the  fol- 
lowing order,  to  wit: 

Ordered,  by  Baltimore  county  court,  this  29th  day  of  No- 
vember, A.  D.,  1845,  that  the  President  of  the  Farmers  and 
Planters  Bank  shew  cause,  on  or  before  three  o'clock  this  day, 
why  Mandamus  should  not  issue,  as  prayed,  in  the  aforegoing 
petition,  provided  a  copy  of  this  order,  and  said  petition,  be 
served  on  the  president  aforesaid,  on  or  before  two  o'clock  this 
day. 

The  parties  aforesaid,  by  their  attorneys  aforesaid,  file  in 
court  here,  the  following  agreement  and  admission,  to  wit, 
(annexed  to  the  petition  aforesaid:)  It  is  admitted,  that  the 
facts  set  forth  in  the  above  petition,  are  true.  It  is  also  admit- 
ted, to  be  taken  with  the  said  facts,  into  the  consideration  of 
the  court,  that  to  pay  over  the  tax,  as  required  by  the  acts  of 
Assembly,  mentioned  in  the  within  petition,  would  be  attended 
with  additional  labor,  trouble  and  expense,  to  the  said  Mayhem, 
as  president  of  the  said  bank.  It  is  agreed,  that  all  proceed- 
ings preliminary  1o  a  peremptory  Mandamus,  are  waived  on 
both  sides,  and  that  the  above  petition,  with  this  statement, 
be  submitted  to  the  said  court  for  its  judgment,  and  that  said 
judgment  shall  be  rendered  pro  forma,  against  the  State,  with 
liberty  of  appeal. 

On  the  29th  November  1845,  in  compliance  with  the  agree- 
ment of  parties  filed,  it  was  ordered  by  the  court,  that  the  rule 
for  the  Mandamus,  is  discharged  pro  forma,  with  costs,  with 
the  right  of  appeal  reserved  to  the  State. 

The  State  prosecuted  this  appeal. 

The  cause  was  argued  before  ARCHER,  C.  J.,  DORSEY, 

CHAMBERS,  SPENCE,  MAGRUDER  and  MARTIN,  J. 

• 

By  RICHARDSON,  attorney  general  of  Maryland,  for  the 
State,  and 

By  DULANY  and  McMAHON  for  the  appellee. 


494  CASES  IN  THE  COURT  OF  APPEALS 

The  State  vs.  Mayhew. — 1845. 

DORSEY,  J.,  delivered  the  opinion  of  this  court. 

We  deem  it  unnecessary  to  decide  a  number  of  questions, 
argued  with  great  ability,  by  the  counsel  of  both  parties;  be- 
cause, from  the  view  we  have  taken  of  the  record  before  us, 
they  do  not  arise  in  this  case. 

According  to  our  interpretation  of  the  act  of  Assembly  in 
question,  the  legislature  have  not  attempted  to  exercise  some 
of  the  powers  so  vehemently  complained  of,  on  the  part  of  the 
defendant. 

The  act  of  March  session  1841,  c.  23,  having  provided  for  a 
general  assessment  of  all  the  real  and  personal  property  within 
the  State,  directed,  that  the  capital  stock  of  the  several  banks, 
and  other  incorporated  institutions  of  this  State,  should  be  as- 
sessed at  its  cash  value.  And  all  the  property  of  such  banks,  and 
incorporated  institutions,  the  stock  of  which  was  thus  assessed 
and  taxed,  being  exempted  from  taxation,  as  far  as  concerns  the 
present  controversy,  the  taxation  of  such  stock,  was  decided  to 
be  a  constitutional  tax,  both  by  the  Supreme  Court  of  this  State, 
and  of  the  United  States.  Difficulties  having  arisen  from  the 
mode  provided,  for  the  collection  of  the  tax  on  said  stock;  and 
the  peculiarly  fluctuating  ownership  of  such  property,  frequent- 
ly rendering  it  a  matter  of  controversy,  by  whom  the  tax  ought 
to  be  paid,  to  remedy  such  evil;  and  to  relieve  the  owners  of 
stock,  who  might  sell  the  same,  from  the  inconvenient  neces- 
sity of  going  to  the  county  town,  to  attend  a  meeting  of  the 
justices  of  the  levy  courts,  commissioners  of  the  tax,  or  county 
commissioners,  (as  the  case  may  be,)  and  furnishing  proof  of 
the  sale  and  transfer  of  the  stock,  that  it  might  be  deducted 
from  the  amount,  standing  against  them  on  the  books  of  assess- 
ment; and  to  relieve  the  stockholders,  as  well  as  the  other  tax 
payers  of  the  counties,  city  and  district,  from  the  payment  of 
a  levy  of  from  three  to  ten  per  cent.,  on  the  amount  of  tax 
levied  on  such  stock;  and  with  a  view,  to  provide  a  far  more 
just,  convenient  and  safe  mode  of  collecting  the  public  reve- 
nue, arising  from  the  capital  stock  of  banks,  and  other  incor- 
porated institutions  in  the  State,  the  legislature,  by  the  first 
section  of  the  act  of  1843,  chap.  289,  enacted,  "that  it  shall 


OF  MARYLAND.  495 


Tho  Stale  vs.  Mayhow.— 1845. 


be  the  duty  of  the  president,  or  other  proper  officer  of  the 
banks,  and  of  all  other  incorporated  institutions  of  this  State, 
semi -annually,  after  the  passage  of  this  act,  to  set  apart  and 
withhold  out  of  the  dividends,  or  profits,  when  dividends  are 
not  declared,  on  the  stock  of  said  banks  and  other  incorporated 
institutions,  the  amount  of  the  tax  levied  on  the  stocks  of  said 
banks,  or  other  incorporated  institutions,  under  the  act  of 
March  session  1841,  chapter  23,  and  its  supplements,  without 
reference  to  the  place  of  residence  of  the  stockholders  therein, 
and  to  pay  the  said  tax  to  the  treasurer  of  this  State,  who  shall 
give  proper  receipts  therefor."  And  by  the  third  section  of 
the  said  act,  it  is  enacted,  "that  on  the  first  day  of  June  next, 
the  several  levy  courts,  commissioners  of  the  tax,  and  the 
appeal  tax  court  of  Baltimore,  shall  deduct  from  the  amount 
of  the  assessment  of  property,  in  the  several  counties,  Howard 
District,  and  the  city  of  Baltimore,  so  far  as  relates  to  the 
taxes  imposed,  for  the  use  of  this  State,  the  assessed  value  of 
the  aforesaid  stocks,  and  that  thereafter,  the  accounts  for  taxes 
due  this  State,  shall  not  include  the  tax  upon  the  aforesaid 
stocks." 

To  the  provisions  of  the  first  section  of  the  said  act  of  As- 
sembly, a  great  variety  of  objections  have  been  taken,  and 
elaborately  and  ingeniously  pressed  upon  the  court. 

First  it  is  insisted,  that  the  defendant,  from  the  nature  of  the 
duty  imposed  on  him,  is  created  a  state  officer,  a  collector  of 
the  taxes,  due  by  the  stockholders  of  the  bank.  To  this  propo- 
sition, we  cannot  yield  our  assent.  Neither  the  design,  nor 
operation  of  the  law,  will  warrant  such  an  interpretation  of  it. 
Its  object  was,  not  to  require  the  officer  of  the  bank,  to  collect 
taxes  due  to  the  State;  but  to  command  him,  he  being  already 
in  possession  thereof,  to  pay  to  the  treasurer,  the  amount  of 
state  taxes  in  his  hands;  which,  under  the  act  of  1843,  he  had 
no  authority  to  pay  to  any  other  person.  By  the  act  of  March 
1841,  c.  23,  the  stock  of  the  banks,  owned  by  residents  of  the 
State,  was  assessed  to  the  individual  stockholders;  and  the 
tax  thereon,  was  to  be  collected  from  them,  in  the  counties, 
city  or  district  in  which  they  respectively  resided.  But,  under 


496  CASES  IN  THE  COURT  OF  APPEALS 

The  State  vs.  Mayhew.— 1845. 

the  act  of  1843,  the  place  and  mode  of  levying  and  collecting 
this  tax,  are  entirely  changed.  It  was  no  longer  collectable 
where  the  stockholders  resided:  it  ceased  to  be  a  debt,  or  duty 
chargeable  upon  them:  they  were  exonerated  from  all  personal 
liability,  for  the  payment  thereof.  Even  the  stock  itself,  stood 
exempt  from  the  payment  of  the  tax.  The  only  security  which 
the  State  had  for  its  payment,  was  contingent;  it  depended 
entirely  upon  the  contingency  of  the  banks  declaring  dividends, 
or  making  profits,  without  declaring  dividends.  And  out  of 
those  dividends  or  profits,  by  terms  of  the  most  explicit  enact- 
ment, the  tax  on  the  stock,  was  directed  to  be  paid  to  the 
treasurer  of  the  State,  by  the  proper  officer  of  the  bank;  that 
is,  by  him,  in  whose  hands  the  dividends  and  profits  of  the 
bank,  are  placed  for  safe  keeping,  and  payment  over  to  the 
persons  entitled  to  receive  the  same.  And  if  the  objections, 
taken  to  the  constitutionality  of  this  act  of  Assembly,  be  not 
sustainable,  he  was  as  imperatively  bound  to  pay  the  tax  in 
question,  in  the  manner  directed,  as  he  would  have  been,  had 
the  board  of  directors  enjoined  him  to  do  so. 

The  next  objection  taken  to  this  act  of  Assembly  is,  that  it 
is  in  violation  of  the  sixth  article  of  the  Bill  of  Rights,  which 
declares,  "that  the  legislative,  executive,  and  judicial  powers 
of  the  government,  ought  to  be  forever  separate  and  distinct 
from  each  other:"  and  of  the  twenty-first  article  of  the  same 
instrument,  which  provides,  "that  no  free  man  ought  to  be 
taken  or  imprisoned,  or  disseized  of  his  freehold,  liberties,  or 
privileges,  or  outlawed  or  exiled,  or  in  any  manner  destroyed, 
or  deprived  of  his  life,  liberty  or  property,  but  by  the  judgment 
of  his  peers,  or  by  the  law  of  the  land." 

According  to  the  argument  in  behalf  of  the  defendant,  if  car- 
ried out  to  its  legitimate  extent,  the  legislature  may  cause  an  as- 
sessment to  be  made,  and  prescribe  the  rate  of  taxation,  but  there 
its  powers  upon  the  subject  cease.  It  must  be  left  to  some  judi- 
cial tribunal  of  the  State,  to  ascertain  the  amount  of  indebtedness 
of  the  individual  tax  payers;  and  when  thus  ascertained,  the 
payment  of  taxes,  can  only  be  enforced  by  a  resort  to  the  judicial 
tribunals  of  the  State,  in  the  same  manner  that  debts  are  recov- 


OF  MARYLAND.  497 


Tho  State  vs.  Mayhcw.— 1845. 


ered  by  one  citizen  from  another.  If  such  be  the  constitu- 
tional restrictions  imposed  on  the  powers  of  taxation,  the 
sovereign  authority  of  the  State  is  virtually  disrobed  of  its 
most  important  and  invaluable  rights,  of  the  very  essence  of 
sovereignty.  The  delays  and  expenses,  incident  to  such  a 
system  of  collecting  the  public  taxes,  would  effectually  para- 
lyze the  right  arm  of  government,  and  render  it  wholly  incom- 
petent, to  the  accomplishment  of  the  all  important  objects  for 
which  it  was  constituted.  That  the  General  Assembly  of  Mary- 
land has  the  right,  by  legislation,  to  impose  upon  all  property 
within  the  State,  a  just,  and  proportionately  equal  public  tax; 
and,  in  like  manner,  provide  all  the  means,  details,  necessary 
for  its  speedy  collection,  by  summary  process  of  execution,  or 
other  reasonable  or  available  mode  is,  we  believe  now,  for 
the  first  time,  made  the  subject  of  a  doubt.  That  such  pow- 
ers should  have  been  exercised,  without  being  questioned, 
from  the  time  of  the  adoption  of  our  Constitution,  till  the  pre- 
sent time,  a  period  of  nearly  seventy  years,  ought  to  be  deemed 
almost  conclusive  evidence  of  their  being  possessed  by  the 
legislature.  A  cotemporaneous  construction  of  the  Constitu- 
tion of  such  duration,  continually  practised  under,  and  through 
which,  innumerable  rights  of  property  have  been  acquired, 
ought  not  to  be  shaken,  but  upon  the  ground  of  manifest  error 
and  cogent  necessity.  If  imperious  necessity  be  appealed  to, 
in  relation  to  the  existence  of  such  a  power,  it  sustains  it  with 
resistless  force.  And  if  a  case  can  be  conceived,  in  which, 
both  as  to  time  and  circumstances,  this  court  would  shrink, 
with  repugnance,  from  the  innovation  now  urged  upon  it,  this 
is  that  occasion. 

It  has  been  contended,  that  the  tax,  for  the  recovery  of 
which  the  present  proceedings  were  instituted,  has  never  been 
levied ;  and,  therefore,  the  officer  of  the  bank  is  neither  au- 
thorised nor  bound  to  pay  it  to  the  treasurer.  The  answer  to 
this  suggestion  is,  that  the  acts  of  Assembly  have  made  the 
levy.  The  assessment  of  the  stock  having  been  made,  and 
the  rale  of  taxation  prescribed,  and  the  obligation  for  its  pay- 
ment being  imposed  on  the  bank  officer;  everything  has  been 
63  v.2 


498  CASES  IN  THE  COURT  OF  APPEALS 


The  State  vs.  Mayhew.— 1845. 


done  by  the  legislature,  which  is  requisite  for  it  to  do,  to  render 
the  tax  available  to  the  State.  The  tax,  by  the  act  of  Assem- 
bly, is  directed  to  be  paid  out  of  the  dividends  or  profits  of 
the  stock,  not  by  the  owners  thereof.  It  is  a  legislative  levy, 
wholly  irrespective  of  the  ownership  of  the  assessable  stock. 
When  the  General  Assembly  confide  to  the  levy  courts,  or  coun- 
ty commissioners,  the  power  and  duty  of  making  what  is  called 
"the  levy  of  the  taxes;"  that  is,  of  making  out  the  "tax  list," 
and  delivering  a  copy  thereof  to  the  collectors;  it  is  done,  not 
because  the  legislature  do  not  possess  the  power  of  discharg- 
ing the  same  duty  itself,  by  express  legislative  enactment,  but 
because  the  power  can  be  more  conveniently  and  advisedly 
exercised  by  the  justices  of  the  levy  courts  and  county  com- 
missioners, to  whose  custody  are  confided  the  books  of  assess- 
ment containing  all  transfers  of  assessable  property;  without 
which  transfer  books,  no  "levy  list,"  or  "tax  list,"  (as  it  is  in- 
discriminately called,)  can  be  correctly  made  out. 

It  is  also  contended,  that  a  Mandamus  ought  not  to  issue  in 
this  case,  because  the  officer  of  the  bank,  to  whom  it  will  be 
directed,  is  ignorant  of,  and  has  no  means  of  ascertaining  the 
amount  of  the  tax  to  which  the  State  is  entitled ;  the  stock  of 
the  bank  being  assessed  at  different  values,  in  the  different 
portions  of  the  State,  where  the  stockholders  reside.  If  this 
could,  in  any  case,  (considering  the  facility  with  which  the 
requisite  information  could  be  obtained,)  furnish  a  ground  for 
refusing  to  comply  with  the  requisitions  of  the  act  of  1843;  it 
certainly  has  no  application  to  the  case  now  before  us.  Here 
all  the  facts  stated  in  the  petition  are  admitted  to  be  true;  and 
the  petition  expressly  states,  that  all  the  stock  of  the  bank 
was  duly  valued,  by  the  proper  assessors,  at  $19.50  per  share, 
so  that  the  same  rate  of  tax  is  chargeable  in  respect  to  each 
and  every  share  of  the  stock  of  the  bank.  There  is,  there- 
fore, in  this  case,  no  pretence  for  the  alleged  inability  of  the 
officer  of  the  bank,  to  comply  with  the  requirement  of  the  act 
of  Assembly,  by  reason  of  any  diversity  in  the  assessed  value 
of  the  shares  of  bank  stock.  And  there  is  still  less  reason,  in 
the  refusal  of  the  proper  bank  officer  to  pay  the  State  tax,  on 


OF  MARYLAND.  499 


Tho  State  vs.  Mayhew.— 1845. 


the  ground  of  the  injustice  done  to  the  stockholders  of  this 
bank,  by  the  tax  laws  of  the  State.  By  taxing  the  stock  of 
the  bank,  instead  of  its  bills,  bonds,  notes,  judgments,  mort- 
gages, and  all  its  other  property,  real  and  personal;  the  bank 
does  not  pay,  perhaps,  one  half  of  the  tax  it  would  pay,  if  its 
property  were  assessed  and  taxed  in  the  same  manner  that 
similar  property  of  all  citizens  of  the  State  is  now  assessed 
and  taxed. 

It  is  further  said,  that  the  act  of  1843,  if  complied  with, 
would  render  taxation  unequal,  by  compelling  the  tax  of  the 
stockholders  to  be  paid  in  cash,  whilst  other  tax  payers  pos- 
sess the  power  of  paying  in  coupons.  Such  was  not  the 
design,  nor  is  it  the  practical  operation  of  that  act  of  Assem- 
bly. The  legislature,  by  it,  neither  intended  to  increase  nor 
diminish  the  amount  of  the  tax  levied  upon  bank  stock.  And 
the  treasurer  of  the  State  receives,  from  the  officers  of  the 
banks,  coupons  in  payment  of  such  taxes,  in  the  same  manner 
that  they  are  received  in  payment  of  taxes  due  by  the  citizens 
of  the  State. 

Neither  is  the  objection  to  the  act  of  1843  well  founded, 
that  it  compels  the  officer  of  the  bank  to  pay  the  tax  upon  the 
whole  capital  stock  of  the  bank,  although  portions  of  it  might 
be  exempt  from  taxation,  as  being  owned  by  other  banks  or 
incorporated  institutions,  (the  stock  of  which  was  taxed,)  or 
as  being  owned  in  such  manner,  as  to  be  exempt  from  taxa- 
tion under  the  first  section  of  the  act  of  March  1841,  chapter 
23.  All  transfers  of  bank  stock,  and  the  names  of  its  owners, 
appear  upon  the  books  of  the  bank,  and  should  any  of  its 
stock  be  exempt  from  taxation,  as  above  mentioned,  the  officer 
of  the  bank  is  not  bound  to  pay  the  tax  upon  it,  nor  would 
the  treasurer  of  the  State  insist  upon  its  payment.  But  the 
conclusive  answer  to  such  an  objection,  in  this  case,  is  this, 
that  the  petition  states,  and  its  statements  are  admitted  to  be 
true,  the  assessment  and  tax  of  the  stock  in  1843,  and  its  then 
and  continued  liability  to  such  assessment,  up  to  the  time  of 
the  filing  of  the  petition  now  before  the  court. 


500  CASES  IN  THE  COURT  OF  APPEALS 

The  State  vs.  Mayhew.— 1845. 

Another  of  the  reasons,  assigned  for  the  non-payment  of  the 
tax  to  the  treasurer,  is,  that  the  bank  may  have  a  lien  upon 
the  dividends  for  a  balance  due  to  it  by  the  owner  of  the  stock. 
The  obvious  answer  to  this  is,  rhat  as  soon  as  a  dividend  is 
declared,  the  right  of  the  State  to  so  much  of  it  as  is  required 
to  be  paid  on  account  of  the  tax,  is  fixed  and  indefeasible, 
and  over-rides  all  other  liens,  claims,  or  rights  by  whomsoever 
asserted,  unless,  perhaps,  it  were  in  conflict  with  a  preferred 
claim  of  the  United  States. 

It  has  been  urged,  too,  as  an  obstacle  to  the  issuing  of  a 
Mandamus  in  this  case,  that  the  board  of  directors  may  have 
forbidden  the  payment  of  the  tax  by  the  officer  of  the  bank. 
The  record  presents  no  such  fact  to  the  court,  and  we  would 
very  reluctantly  credit  its  existence.  Had  such  a  prohibition 
been  made  apparent  to  the  court,  we  feel  assured  it  would  have 
lent  a  willing  ear  to  an  application  of  the  attorney  general,  for 
the  interposition  of  the  court  in  removing  the  difficulty. 

The  only  remaining  ground  on  which  the  officer  of  the  bank 
places  his  refusal  to  comply  with  the  mandates  of  the  law,  is 
that  a  compliance  would  subject  him  to  "additional  labor, 
trouble  and  expense."  To  what  extent,  or  in  what  way  such 
"additional  labor,  trouble  and  expense"  would  be  incurred,  is 
left  wholly  unexplained.  A  citizen  is  not  necessarily  dis- 
charged from  the  obligation  to  perform  a  duty,  enjoined  by 
law,  for  the  public  good,  because  it  imposes  on  him  some  ad- 
ditional labor,  trouble  and  expense.  The  law  requires  a  cer- 
tain portion  of  its  citizens  to  perform  militia  duty,  by  attending 
public  musters  on  certain  days  in  the  year,  which  subjects 
them  to  much  more  labor,  trouble  and  expense,  than  that  im- 
posed upon  the  officer  of  the  bank  in  the  discharge  of  the  duty, 
now  the  subject  of  our  consideration.  The  law  requires  every 
voter  to  go  to  the  polls  and  vote  at  the  election  of  public  offi- 
cers. It  also  enjoins  upon  every  taxable  inhabitant  of  the 
State,  the  duty  of  furnishing  to  assessors,  a  true  and  detailed 
statement  of  all  his  property  liable  to  taxation,  and  of  all  such 
property  in  his  possession,  though  belonging  to  other  persons. 
A  duty,  in  many  instances,  attended  with  far  more  labor, 


OF  MARYLAND.  501 


Tho  Stato  vs.  Mayhew.— 1845. 


trouble,  and  expense,  than  is  required  of  the  bank  officers, 
(under  the  act  of  1843,)  in  consequence  of  the  particular  situ- 
ation they  occupy,  in  regard  to  important  rights  and  interests 
of  the  State.  Every  citizen  summoned  by  an  executive  offi- 
cer to  aid  him  in  the  preservation  of  the  public  peace,  or  in 
the  service  of  civil  or  criminal  process,  or  in  the  arrest  of  a 
felon,  is  bound  to  perform  the  service  required,  although  it 
may  subject  him  to  danger,  as  well  as  "additional  labor, 
trouble  and  expense."  Yet  in  all  these,  and  numerous  other 
instances  of  the  kind,  which  might  be  enumerated,  nobody 
ever  doubted  the  obligation  of  the  citizen  to  obey  the  man- 
dates of  the  law.  0  Suppose,  instead  of  providing  for  the  col- 
lection of  taxes,  through  the  instrumentality  of  collectors,  the 
legislature  had  dispensed  with  collectors,  and  required  all  those 
bound  for  the  payment  of  taxes  to  pay  them  to  the  treasurer, 
at  the  treasury  of  the  State.  Could  the  constitutionality  of 
such  legislation  be,  for  a  moment,  the  subject  of  a  doubt  ? 
We  think  not.  For  the  time,  manner  of  payment,  and  collec- 
tion of  the  public  taxes,  it  is  the  peculiar  province  of  the 
legislature  to  provide.  It  may.  in  its  discretion,  make  the  tax 
levied,  a  charge  or  lien  on  the  property  assessed,  or  its  profits, 
or  a  personal  charge  or  debt  to  the  owner  thereof.  In  the 
case  of  bank  stock,  the  tax  upon  it  is  made,  as  it  were  a  lien 
upon  its  dividends  or  profits,  and  to  be  paid  thereout;  and 
such  dividends,  or  profits,  being  in  the  hands  of  the  proper 
officer  of  the  bank,  he  is  required,  by  the  act  of  1843,  to  pay 
the  portion  thereof,  to  which  the  State  is  entitled  for  taxes,  to 
the  treasurer  of  the  State.  In  this  enactment,  we  can  discover 
nothing  unjust  or  oppressive,  or  in  anywise  conflicting  with 
any  thing  to  be  found  in  the  Bill  of  Rights,  but  we  regard  it 
as  the  legitimate  exercise  of  a  power  incident  to  the  sovereign 
right  of  levying  taxes  for  the  support  of  government. 

The  defendant  having  failed  to  inform  us  how,  or  to  what 
extent,  the  duty  imposed  on  him  by  the  act  of  1843,  has 
subjected  him  to  "additional  labor,  trouble  and  expense, 5>  let 
us  inquire  whether  this  "additional  labor,  trouble  and  expense" 
be  so  unreasonable,  unjust  and  onerous,  that  this  court,  in  the 


502  CASES  IN  THE  COURT  OF  APPEALS 

The  State  vs.  Mayhew  —1845. 

exercise  of  a  sound,  judicial  discretion,  ought  to  deny  to  the 
State,  the  process  that  has  been  applied  for,  in  its  behalf.  To 
do  this,  we  must  ascertain  what  are  the  acts  to  be  done  by  the 
bank  officer,  in  discharge  of  the  duty  assigned  him  by  the  act 
of  Assembly?  He  must  multiply  the  number  of  shares,  to 
wit :  23,425  by  $19.50,  the  assessed  value  of  each  share  ;  and 
of  the  amount  thus  obtained,  ascertain  what  is  the  one-fourth 
of  one  per  cent.  Having  thus  discovered  the  amount  of  the 
State  tax  if  paid  in  money,  with  the  prices  current  before  him, 
which  in  a  newpaper  or  otherwise,  is  to  be  found  in  every 
banking  institution,  he  sees  the  price  of  coupons,  and  calls 
on  a  broker,  or  drops  a  line  to  a  broker  to  call  on  him,  pur- 
chases a  coupon  for  the  amount  of  the  State  tax,  encloses  it  in 
a  letter  to  the  treasurer,  and  the  next  day,  or  the  day  after, 
receives  a  letter  from  the  treasurer,  containing  the  appropriate 
receipt.  The  postage  on  this  letter  being  five  cents,  is,  as  it 
ought  to  be,  paid  by  the  bank  :  so  that  in  truth,  not  a  farthing 
of  expense  is  incurred  by  the  officer  of  the  bank,  in  the  dis- 
charge of  this,  his  most  onerous  duty.  He  then  divides  the 
sum  paid  for  the  coupon,  by  the  aforementioned  number  of 
shares,  and  the  quotient  is  the  amount  of  the  tax  attributable 
to  each  share  of  stock.  He  then  directs  the  clerk  of  the  bank, 
by  whom  ihe  statement  is  made  out  for  the  payment  of  the 
dividend,  to  deduct  from  the  dividend  of  each  stockholder  the 
amount,  arrived  at  by  multiplying  his  number  of  shares  by  the 
sum  payable  as  the  tax  on  each  share,  and  there  ends  all  the 
"additional  labor,  trouble  and  expense,"  of  which  the  bank 
officer  complains.  If  the  entire  labor  and  trouble  thrown,  in 
this  case,  upon  the  officer  of  the  bank,  were  to  be  wholly  per- 
formed by  a  single  competent  clerk,  he  would  not  be  thus  oc- 
cupied for  the  half  of  a  day.  And  if  the  directors  of  the  bank 
would,  as  they  ought  to  do,  cause  the  coupon,  for  the  pay- 
ment of  the  tax  on  its  stock,  to  be  purchased  before  declaring 
the  dividend,  the  officer  of  the  bank,  would  be  saved  more 
than  half  the  labor  and  trouble  cast  upon  him  by  the  act  of 
1843.  This  is  a  computation  of  the  duties  of  the  bank  officer 
as  to  the  first  dividend,  which,  in  a  great  degree,  supercedes  the 


OF  MARYLAND.  503 

The  State  vs.  Mayhew.— 1845. 

necessity  of  similar  calculations  at  subsequent  dividends.  The 
services  thus  rendered  by  the  bank  officer,  though  nominally 
for  the  State,  are  in  truth  performed  in  the  way  of  his  vocation, 
for  the  benefit  and  as  the  agent  and  representative  of  his  em- 
ployers, of  whom  the  State  might  lawfully  have  exacted,  the 
services  thus  performed  by  him.  Under  such  circumstances, 
can  this  court  do  otherwise,  than  regard  this  alleged  "addi- 
tional labor,  trouble  and  expense,"  to  the  officer  of  the  bank, 
as  a  ground  wholly  insufficient,  to  avoid  the  payment  of  taxes 
most  justly  due  to  the  State. 

The  agreement  of  the  counsel  filed,  in  this  cause,  renders 
it  unnecessary  for  us  to  say  any  thing,  as  to  the  propriety  of 
applying  for  a  Mandamus  against  the  president,  instead  of 
some  other  officer  of  the  bank. 

The  only  remaining  question  to  be  considered,  (if  indeed  a 
question  it  can  be  called,)  is  whether,  in  the  case  before  us,  a 
Mandamus  is  the  appropriate  remedy,  to  restore  the  State  to 
those  rights,  which  are  illegally  and  unjustly  withheld  from  it. 
For  the  recovery  of  the  tax  on  the  stock  of  the  bank,  the 
State  has  no  lien  on  the  stock ;  it  can  maintain  no  action  at 
law  against  the  stockholder ;  nor  against  the  bank;  nor  against 
any  officer  of  the  bank  in  his  official  character.  Nor  can  it 
maintain  an  action  for  money  had  and  received,  against  any 
officer  of  the  bank,  in  his  individual  character.  Yet,  under 
the  act  of  1843,  we  are  of  opinion,  that  it  has  a  clear  and  un- 
questionable right,  a  legal  right,  to  be  paid  out  of  the  divi- 
dends declared,  the  amount  of  the  tax  imposed  on  the  assessed 
value  of  the  stock  of  the  bank.  And  for  the  assertion  of  this 
right,  it  has  no  appropriate  legal  remedy.  According  then  to 
all  the  authorities,  a  Mandamus  is  the  proper  remedy;  and  it 
would  be  a  reproach  to  our  system  of  jurisprudence,  if  it  were 
denied  to  the  State  on  the  present  occasion. 

The  pro  forma  judgment  of  the  county  court  is  reversed, 
with  costs,  and  a  procedendo  awarded. 

JUDGMENT  REVERSED  AND  PROCEDENDO  AWARDED. 


INDEX. 


ACKNOWLEDGMENT. 

See  DEED,  as  to  assignment  of  Chattels,  3,  4,  5,  6,  7,  8. 
ACTION,  RIGHT  OF 

1.  The  failure  of  a  plaintiff  to  pursue  one  legal  remedy  against  a  sheriff 

in  default,  cannot  be  construed  into  the  abandonment  of  another 
legal  remedy  against  that  officer,  for  the  same  default.  State,  use 
of  Creecy  vs.  LaWson,  62. 

2.  The  act  of  1832,  ch.  280,  is  not  repealed  by  the  act  of  1834,  ch   89. 

The  latter  gives  to  the  creditors  of  foreign  corporations  an  additional 
remedy.    Georgia  Ins.  $•  Trust  Co.  vs.  Dawson,  365. 
See  CONTRACT,  6. 

INSOLVENT  DEBTOR  1,  as  to  modification  of  remedy  on  bail  bond  of, 
PLEAS  AND  PLEADING,  6. 

ACTION  UPON  THE  CASE. 

1.  Whore  an  inquisition  was  taken,  returned,  and  ratified,  according  to 

law,  upon  proceedings  by  a  fail  road  company,  which  found  that  a 
piece  or  parcel  of  land  was  wanted  by  the  company  for  the  con. 
struction  of  their  road,  and  assessed  the  damages  which  the  owner 
of  the  fee  would  sustain  by  the  use  and  occupation  of  his  land  for 
the  purpose  aforesaid,  at,  &c.,  all  questions  having  relation  to  the 
damage  done  by  the  location  and  construction  of  the  road  are  ter- 
minated and  concluded  by  such  inquest.  Bait.  <%•  Sus.  R.  Road 
Co.  vs.  Compton  et.  al.,  20. 

2.  And  hence  in  an  action  brought  by  the  owner  of  a  fee  against  the 

company  for  having,  after  the  construction  of  the  road  through  his 
land,  (the  benefits  of  which  construction  to  the  plaintiff  had  been 
submitted  to  the  jurors  upon  the  inquisition  aforesaid,)  abandoned 
the  same,  and  constructed  the  road  anew  in  another  location,  off 
the  plaintiff's  land,  the  plaintiff  cannot  give  evidence  of  the  damage 
which  would  accrue  to  him  from  such  original  construction  inde- 
pendent of  the  inquisition.  Ib. 

3.  After  a  rail  road  company  had  constructed  its  road  by  authority  of  law. 

through  the  plaintiff's  land,  condemned  for  that  object,  they  were  au- 
thorised to  alter  the  location  of  their  road  between  two  given  points  : 
64     v.2 


506  INDEX. 

ACTION  UPON  THE  CASE— Continued. 

they  re-constructed  the  road,  and  abandoned  that  part  which  had 
been  made  through  the  plaintiff's  land.  HELD:  that  the  authority  de- 
rived from  the  legislature  to  alter  the  location,  did  not  exempt  the 
company  from  liability  to  the  plaintiff  for  the  loss  sustained  by  him  by 
reason  of  such  abandonment.  Ib. 

4.  Where  a  rail  road  company  had  constructed  a  toad,  then  abandoned  it 

in  part,  and  changed  the  location  pro  tanto,  a  plaintiff  through  whose 
land  the  road  originally  passed,  having  sustained  no  damage  or  injury 
in  fact,  by  the  alteration,  cannot  maintain  an  action  for  such  change 
of  location.  Ib. 

5.  In  an  action  for  damages,  for  diverting  the  course  of  a  stream  from  its 

natural  channel,  on  the  plaintiff's  land,  the  defendant  may  show, 
that  the  diversion  was  made  on  his  lands  above  those  of  the  plain, 
tiff,  and  that  it  was  rather  a  benefit,  than  an  injury  to  the  plaintiff; 
or  that  it  was  made  in  virtue  of  a  verbal  agreement  between  plain- 
tiff and  defendant,  that  the  latter  might  make  the  diversion,  for 
the  purpose  of  working  a  mill  to  be  erected  by  the  defendant  on  his 
own  land,  if  the  defendant  would  allow  the  plaintiff  the  use  of  a 
road  through  the  defendant's  land,  and  the  execution  of  such  agree- 
ment; or  that  the  plaintiff  entered  into  such  a  contract  with  the 
defendant,  conferring  the  privilege,  with  a  fraudulent  design,  and 
for  the  purpose,  of  extorting  money  from  him.  Addison  vs.  Hack, 
221. 

6.  Such  evidence  is  admissible  in  mitigation  of  damages ;  and  for  the 

purpose  of  showing  that  the  defendant  was  not  a  trespasser,  ab  initio, 
for  continuing  the  diversion  after  a  countermand  of  his  authority 
by  the  plaintiff;  or  that  he  could  not  be  made  responsible  in  dam- 
ages for  acts  done  upon  his  own  land,  with  the  verbal  permission 
and  authority  of  the  plaintiff.  Ib. 

7.  The  maxim,  "volenti  non  fit  injuria,"  illustrated.     Ib. 

8.  Where  one  party  authorises  another  to  divert  the  channel  of  a  stream, 

flowing  through  the  lands  of  both,  by  means  of  a  license  which  is 
countermandable  in  its  nature,  and  the  authority  is  exercised  as 
granted,  the  party  who  has  the  power  of  countermand,  can  only  be 
restored  to  his  rights,  by  doing  justice  to  the  other,  and  tendering 
him  the  expense  which  he  has  incurred  under  the  license.  Ib. 

9.  Where  the  plaintiff  verbally  agreed  to  abandon  the  use  of  a  stream  of 

water  in  the  manner  in  which  it  had  been  accustomed  to  flow  on 
his  land,  and  the  abandonment  was  consummated  by  the  execution 
of  his  license,  from  that  moment,  his  right  to  the  use  of  the  water, 
as  it  formerly  flowed  in  its  natural  channel,  became  extinct;  and  it 
was  no  longer  appurtenant  to  his  land.  Ib. 

10.  Such  license  conveys  no  estate,  interest,  or  use  iii  the  land ;  is  not 
within  our  registry  acts ;  nor  calculated  to  mislead  purchasers.     Ib. 
See  ASSUMPSIT,  11. 


INDEX.  507 

ACTS  OF  ASSEMBLY. 

1729,  ch.  8,  sec.  5     Deed  of  Chattels,  150. 

1745,  ch.      9.    Improvements  out  of  the  water,  444. 

1768.  ch.    10.     Sheriff— Judgment— Execution,  62. 

1778,  ch.    21.    Reference— Award,  49. 

1783,  ch.    24.    Port  Wardens'  power,  444. 

1794,  ch.    54     Effect  of  on  act  of  1768,  ch.  10,  62. 

1796,  ch.    96.    Power  of  Baltimore,  as  to  Riparian  Proprietors,  444. 

1811.  ch.  161.     Arrest  on  final  process,  62. 

1818,  ch.  193,  sec.  10.     Dower,  359. 

1820.  ch.  160,  sec.  3.    Answers  after  Interlocutory  Decree. 

Commission  not  affected,  83. 

1822,  ch.  128,  sec.  3.     Composition  money— Alleghany,  291. 
1825,  ch.  162.  sec.  8.    Primary  Schools,  11.  254, 
1825,  ch.  117.    Prayer,  not  too  general,  204. 
1825,  ch.  117.    Form  of  Prayer  — Exceptioas,  462. 
1825,  ch.  117.    Bill  of  Exceptions,  42. 
1827,  ch.  162,     Wharfage  on  public  wharfs  in  Baltimore,  444. 

1827,  ch.    72.    Jurors,  City  of  Baltimore,  20. 

1828,  ch.  160,  sec.  5      Primary  Schools,  11.     254. 
1828,  ch.    50.     Sheriff— Escape — Arrest,  62. 

1831,  ch  288.     Baltimore  <Sf  Port  Deposit  Rail  Road  Company,  355. 
1831,  ch.  296.    Delaware  tj-  Md.  R.  Road  Co.,  355. 

1831,  ch.  315,  sec,  10.     Sales  of  Real  Property,  and  Orphans  Court,  475. 

1832.  ch.  280.     Corporation,  not  repealed  by  act  1834.  ch.  89,  365. 
1834,  ch.    89.     Corporation,  no  repeal  of  1832,  ch.  80,  365. 

1834,  ch.  336.    Bail  of  Insolvents.  79. 

1835,  ch.  293,     Wilmington  $  Sus.  R.  Road  Co.,  355. 

1837,  ch.    30.  Phila.,  Wilmington  $  Balto.  R.  Road  Co,,  355 

1839,  ch     90.  Primary  Schools,  11.  254. 

1S41,  ch.    23.  Collector  of  Taxes — Commission,  374. 

1841,  ch.    23.  Taxes  on  Bank  Stock,  487. 

1843,  ch.  343.  Unconstitutional  act.     Appeal,  147. 

1843,  ch.  289.  Duty  of  Officers  of  Corporations,  as  to  payment  of  Tax  on 
Stocks,  487. 

AGREEMENT.    See  CONTRACT. 
ANSWER  IN  CHANCERY. 

See  COURT  OF  CHANCERY,  7. 
EVIDENCE,  21,  24. 

APPEAL.    See  PRACTICE  IN  THE  COURT  OF  APPEALS. 
ARBITRATION— AWARD. 

1.  The  confession  of  a  judgment,  to  be  released  on  payment  of  what 

F  shall  say  is  due,  cannot  be  considered  as  a  reference  under  the 
act  of  1778,  ch.  21.  It  is  a  final  judgment.  State,  use  of  Welsh 
and  wife  vs.  Jones  et.  al.,  49. 

2.  The  various  provisions  of  that  act,  all  contemplate  a  case  still  pend- 

ing in  court,  and  awaiting  the  return  of  the  award  before  a  judg- 
ment is  to  be  rendered.  lb. 


508  INDEX. 

A  RBITRAT10N— A  WARD  -Continued. 

3.  The  words  payment  and  due  in  such  a  confession  import  that  a  sum 

of  money,  was  alone  in  the  view  of  the  parties,  and  hence  no  other 
authority  was  given  by  it,  but  to  certify  the  sum  of  money  on  pay- 
ment of  which  the  judgment  should  be  released.  Ib. 

4.  Under  such  a  confession,  the  party  who  was  to  ascertain  the  sum 

has  no  authority  to  award  or  determine,  that  the  judgment  should 
be  released  on  payment  of,  &c.,  in  negro  property,  at  the  original 
appraisement,  belonging  to  the  estate  of  H.  Ib. 

5.  Where  parties  submit  matters  in  controversy,  for  the  purpose  of  a  final 

determination,  and  the  arbitrators  make  an  award,  the  original  con- 
tract or  cause  of  action  is  merged  by  the  submission  and  award ;  and 
there  is  no  distinction,  in  this  respect, between  submissions  by  parol, 
and  by  bond.  Randall  vs.  Glenn,  430, 

6.  There  is  a  distinction  between  a  submission  by  parties  to  the  judgment 

of  two  or  more  individuals  who  are  to  decide  the  controversy,  and  a 
reference  of  a  collateral,  incidental  matter  of  appraisement,  or  calcu- 
lation, or  the  submission  of  a  particular  question,  forming  only  a  link 
in  the  chain  of  evidence,  not  calculated  to  put  an  end  to  contro- 
versy. Ib 

7.  The  recital  in  a  mortgage  executed  and  delivered  by  R.  to  G.,  that  he 

stands  indebted  to  G.  in  a  large  sum  of  money,  for  advances,  the 
amount  of  which  is  to  be  ascertained  upon  examination  of  their  ac- 
counts by  J.  and  M.,  mutually  appointed  by  R.  and  G.,  for  that  pur- 
pose, is  a  reference  of  a  mere  matter  of  calculation,  and  ascertainment 
as  to  the  amount  of  money  advanced  ;  an  ascertamment  in  conformity 
to  such  recital  does  not  merge  the  original  contract.  Ib. 

8.  An  ascertainment  of  the  amount  due,  under  such  circumstances,  is 

competent  evidence,  in  an  action  of  debt  brought  by  G.  against  R., 
for  money  lent,  advanced,  had,  and  received,  under  the  plea  of  nil 
debet,  as  an  admission  of  the  defendant  of  the  amount  due  the  plain- 
tiff. Ib. 

ASSESSMENT.     See  PRIMARY  SCHOOLS. 
TAXES. 

ASSUMPSIT. 

1.  The  condition  of  B's  bond  of  the  30th  May,  1835,  recited,  that  in 
consideration  of  $500,  and  three  promissory  notes  amounting  to 
$500,  he  would  convey  to  R  a  certain  house  and  lot,  when  all  the 
conditions  of  his  bond  should  be  complied  with — at  the  foot  of  this 
bond  was  a  receipt  for  $500  :  another  paper  signed  by  B,  dated  in 
1841,  certified,  that  he  had  taken  back  the  house  and  lot,  for  the 
same  amount  of  money  which  R  agreed  for  and  purchased  of  him, 
and  "feel  myself  bound  for  the  same  amount."  R  took  possession 
of  the  house  in  1835 ;  and  remained  there  until  1840 ;  the  rent  of 
which  was  worth  $90  per  annum.  In  an  action  brought  upon  the 
agreement  of  1841,  to  recover  the  $500,  HELD:  that  the  defendant 
was  bound  to  return  to  the  plaintiff  the  amount,  if  any,  which  the 
jury  should  find  was  paid  by  him  to  the  defendant,  under  tho  con- 


INDEX.  509 

ASSUMPSIT—  Continued. 

tract  of  J835 ;  that  the  value  of  the  use  and  occupation  was  not  to 
be  deducted  from  sucli  sum  ;  and  that  the  contract  of  1841  was  a  re- 
purchase. Benson  vs.  Boteler,  74. 

2.  Where  the  defendant  made  his  note  payable  to  the  plaintiff,  who 

passed  it  away  for  value,  and  afterwards,  the  plaintiff  paid  it,  he 
may  maintain  an  action  for  money  paid  for  the  defendant,  though 
after  the  note  fell  due,  and  before  the  plaintiff  had  paid  his  endorse, 
ment,  the  defendant  was  released  under  the  act  for  the  relief  of  in- 
solvent  debtors.  Wharton  et.  al  vs.  Gallon,  173. 

3.  Upon  the  back  of  the  notes  of  a  corporation  under  its  seal,  payable  to 

the  order  of  K,  he  and  G,  endorsed  their  names,  over  which  D,  an 
assignee  for  value,  wrote  as  follows :  "For  value  received,  we  join  (ly 
and  severally  promise  D,  to  pay  him  the  amount  of  the  within,  should 
the  Company  make  default  in  the  payment  thereof."  On  proof  that 
the  Company  gave  the  notes  in  the  course  of  their  business,  and  G, 
their  debtor,  credit  in  account  for  their  amount,  demand  of  payment 
from,  and  refusal  by  the  Company,  and  immediate  notice  to  G,  in  an 
action  of  assumpsit  by  D  against  C,  HELD,  he  was  entitled  to  re- 
cover. Gist  and  Scott  vs.  Drakely,  330. 

4.  The  right  of  action  was  not  on  the  sealed  instrument,  but  on  the  en- 

dorsement, a  collateral  or  distinct  contract. 

5.  For  repairs  made  to  a  carriage  for  the  benefit  of  the  defendants,  and 

with  their  knowledge  and  approbation,  they  would  be  liable ;  but 
whether  so  made,  is  a  question  for  the  jury.  Rogers  cj-  Marfield  vs. 
Severson,  385. 

6.  In  what  character  a  person  who  takes  a  carriage  to  a  mechanic  to  be 

repaired,  is  in  possession,  whether  as  driver,  servant,  agent,  or  owner, 
is  a  fact  for  the  jury. 

7.  On  the  6th  October  1841,  B  executed  an  absolute  bill  ot  sale  to  M,  for 

a  vessel,  on  which,  on  the  8th  he  took  out  a  register  in  his  own  name, 
and  made  the  usual  oath  required  by  the  act  of  Congress.  On  the 
15th  November  1841,  B,  who  continued  in  possession,  chartered  the 
vessel  for  a  foreign  voyage,  to  H,  who  appointed  C  master,  and  he, 
in  November,  and  to  the  15th  December,  purchased  materials  for  her 
outfit,  by  B's  directions.  On  the  20th,  the  account  for  materials  was 
delivered  to  B.  On  the  19th  January  1842,  the  charter  party  made 
by  B,  was  assigned  and  delivered  by  him  to  M,  who  then  effected  in- 
surance  on  the  vessel  and  freight,  alter  an  enquiry  of  B,  of  the  nature 
and  particulars  of  the  voyage.  Upon  the  return  oi  the  vessel,  in 
August  1842,  M  received  the  freight,  paid  the  port  charges,  for  the 
nrst  time  took  possession  of  her ;  in  November  sold  her,  and  received 
th  e  money ;  never  having  before  had  any  possession  and  control  of 
of  the  vessel.  In  an  action  brought  by  a  material  man  against  M, 
for  the  supplies  furnished  as  aforesaid,  HELD  : 
1st.  That  the  plaintiffs  were  not  entitled  to  recover,  upon  the  mere 
finding  of  the  fact  by  the  jury,  that  M  was  the  owner  of  the  ves- 
sel, at  the  time  the  articles  furnished  her,  were  sold  and  delivered. 


510  INDEX. 

A  SSUMPSIT—  Continued. 

Nor  in  addition  to  the  fact  ol  ownership,  as  aforesaid,  the  circum- 
stances, that  the  supplies  were  furnished,  and  that  M  received 
the  benefit  of  them. 

2nd.  That  it  was  not  competent  for  M  to  show,  by  parol  proof,  that 
his  bill  of  sale  was  intended  to  be  a  mortgage ;  that  it  was  so  de- 
signed and  agreed,  between  him  and  B. 

3rd.  It  was  not  competent,  to  either  plaintiff  or  defendant,  under 
the  circumstances  of  this  case,  by  any  form  of  prayer,  to  with- 
draw the  question  of  B's  agency  for  M,  in  procuring  materials 
for  the  ship,  from  the  consideration  of  the  jury.  Henderson  »«. 
Mayhew,  393. 

8.  Where  there  was  evidence  offered,  that  M  was  the  owner  of  a  vessel 

at  the  time  she  was  furnished  with  supplies,  but  the  account  against 
her  and  her  owner,  was  sent  to  B,  her  previous  owner,  for  payment, 
this  cannot  discharge  M,  if,  but  for  this  proof,  he  would  have  been 
answerable,  Ib, 

9.  Unless  the  vendor  knows,  at  the  time  of  sale  of  chattels,  who  his  prin- 

cipal is,  and  notwithstanding  such  knowledge,  makes  the  agent  his 
debtor,  the  principal  is  not  discharged.  Ib, 

10,  The  act  of  1827,  ch,  162,  sec.  4,  gives  the  M.  and  C,  C.  of  Baltimore, 

the  right  to  charge  and  collect  wharfage  from  public  wharves,  and 
where  the  owner  of  a  lot  adjacent  to  such  a  wharf,  demands  and  re- 
ceives the  wharfage,  the  city  may  recover  the  amount  unlawfully  re- 
ceived, and  withheld  from  her,  by  such  owner,  City  of  Baltimore 
vs.  White,  444, 

11.  The  plaintiff  proved,  that  on  the  3rd  March  1841,  he  sold  and  delivered 

to  the  defendant  a  quantity  of  merchandize,  to  the  value  of  $494.25, 
and  there  rested  his  cause.  The  defendant  offered  in  evidence  a  bill  of 
parcels,  for  the  same  merchandize,  of  the  same  date  and  amount,  at 
six  months,  due  3-6  September  1841,  on  which  was  written  by  the 
plaintiffs:  "Received  payment  for  above  as  follows,  R's  note,  dated 
16th  December  1840,  a  5  ms.,  due  16th  May  for  $484.79.  Interest 
on  amount  of  note  from  16th  May  to  3rd  September,  $8.55.  Cash 
for  balance,  $0.91."  The  plaintiff  produced  the  note  in  court, 
and  offered  to  deliver  it  up ;  and  proved,  that  on  the  4th  May  R. 
applied  for  a  release  under  the  insolvent  laws.  Tho  note  was  in 
blank,  and  the  defendant,  at  the  time  he  passed  it  to  plaintiff,  refused 
to  endorse  it.  There  was  evidence  given,  without  exception,  that 
the  plaintiffs,  after  inquiry  about  R.,  at  the  request  of  the  defendant, 
agreed  to  take  the  note  at  their  own  risk ;  that  the  defendant  knew, 
before  the  time  of  his  purchase,  that  R.  did  not  pay  his  notes  at 
maturity,  and  also  evidence  from  which  the  jury  might  infer  fraud 
on  the  part  of  tho  defendant.  HELD  :  1st.  &c. 

2nd.  That  the  receipt  was  evidence  of  payment,  and  the  plaintiffs, 
upon  the  surrender  of  the  note  of  R.,  were  not  necessarily  en- 
titled to  a  verdict. 

3rd.  That  the  knowledge  by  the  defendant,  when  he  passed  the 


INDEX.  511 

ASSUMPSIT— Continued. 

note,  that  its  maker  was  in  a  failing  condition,  did  not,  under 
the  circumstances  of  the  case,  make  the  passing  of  the  note  a 
fraud  upon  the  plaintiffs. 

4th.  That  there  was  no  evidence  that  the  defendant  concealed  the 
information  he  had,  in  relation  to  R.,  from  the  plaintiffs,  at 
the  time  of  passing  away  the  note. 

5th.  That  if  the  note  of  R.  was  received  by  the  plaintiffs  in  pay- 
ment,  without  recourse  to  the  defendant,  in  the  event  of  its 
being  dishonored,  then  he  is  not  entitled  to  recover,  unless  the 
jury  shall  find  the  transfer  to  have  been  fraudulently  made. 
6th.  That  if  the  sale  was  made  upon  a  credit,  not  expired 
when  the  action  was  brought,  then  the  plaintiffs  are  not  en- 
titled to  recover  in  asaumpsit,  although  the  note  was  received 
but  as  collateral  security,  and  not  in  payment.  Phelan  <J- 
Bogue  vs.  Crosby,  462. 

BALTIMORE  'AND  SUSQUEHANNA  RAIL  ROAD  COMPANY. 
See  RAIL  ROAD  CORPORATIONS. 

BALTIMORE,  CITY  OF    See  RIPARIAN  PROPRIETOR. 

BANKS.    See  TAXES,  for  tax  on  stock  of. 

BILL  OF  PARTICULARS.    SEE  PRACTICE,  34  to  37. 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

1.  Upon  negotiable  paper,  the  holder  can  only  write  over  the  signature  of 

the  endorser,  sueh  an  endorsement  as  conforms  to  the  nature  of  the 
instrument,  viz :  to  point  out  the  person  to  whom  the  bill  or  note  is 
to  be  paid.  Gist  <$•  Scott  vs.  Drakely,  330. 

2.  In  actions  upon  notes  not  negotiable,  the  intention  of  the  parties  is  to 

be  considered,  and  effect  is  to  be  given  to  that  intention,  if  no  rule  of 
law  is  violated.  Ib. 

3.  When  a  defendant,  for  a  valuable  consideration,  agreed  to  become,  and 

by  endorsing  a  note  or  single  bill,  not  negotiable  in  point  of  law,  de- 
signed to  become,  security  for  the  money  expressed  in  it,  he  is  re- 
sponsible for  its  payment.  Ib, 

4.  As  to  effect  of  a  note  received  in  payment  of  goods  sold  and  delivered, 

Phelan  <$•  Bogue  vs.  Crosby,  462. 

BOND. 

1.  The  damages  which  an  obligee  in  a  replevin  bond  can  recover  from  the 
obligors,  are  only  such  as  he  has  suffered  personally,  by  reason  of  the 
institution  and  failure  of  the  action  of  replevin.  Walter  use  of  Wai" 
ter  vs.  Warfield,  216. 

See  ESTOPPEL,  5. 

BOND  OF  SHERIFF. 

1.  In  an  action  on  a  sheriff's  bond,  conditioned  for  the  faithful  discharge 
of  his  duties,  the  defendant  is  liable  to  no  more  damages  for  an 
alleged  escape  under  final  process,  than  the  plaintiff  has  actually 
sustained,  to  be  ascertained  by  the  verdict  of  a  jury,  and  hence  the 


512  INDEX. 

BOND  OF  SHERIFF— Continued. 

sheriff  and  his  sureties  may  show  under  such  a  breach,  in  mitiga- 
tion of  damages,  the  insolvency  of  the  original  defendant  from  the 
time  of  the  issue  of  the  ca.  sa.  until  ils  return.  State,  use  of 
Creecy  vs.  Lawson  et.  al.,  62. 

2.  The  act  of  1768,  ch.  10,  sec.  1,  enables  any  plaintiff  in  an  execution 

to  call  upon  the  sheriff  to  produce  the  body  of  the  defendant  before 
the  court,  and  on  his  default,  on  motion,  to  cause  judgment  to  be 
entered  up  for  the  full  amount  of  his  claim,  principal,  interest  and 
costs.  Ib. 

3.  Where  such  a  course  is  adopted,  in  an  action  on  the  sheriff's  bond, 

assigning  as  a  breach  the  non-payment  of  such  a  judgment,  that 
officer  and  his  sureties  would  be  liable  for  the  full  amount  of  the 
judgment.  Ib. 

BRITISH  STATUTES. 

1.  The  statutes  of  13  Edw.  1,  ch.  11,  and  1  Rich.  2,  ch.  12,  first  gave 

the  action  of  debt  against  a  gaoler  or  sheriff  for  an  escape.  Statet 
use  of  Creecy  vs.  Lawson,  62. 

2.  Where  the  statutuble  remedy  is  pursued,  the  sheriff  is  put  by  the  sta- 

tute in  the  same  situation  in  which  the  original  debtor  stood,  and  the 
jury  cannot  give  a  less  sum  than  the  creditor  would  have  recovered 
against  the  defendant  in  the  original  suit.     Ib. 
See  LANDLORD  AND  TENANT,  5  to  10. 

CASES  EXPLAINED  OR  OVERRULED. 

CONNELLY  vs.  BOWIE,  6  H.  fy  J.,  141,  explained,  150. 
CERTAINTY  OF  DESCRIPTION  OF  LAND  CONDEMNED. 

See  RAIL  ROAD  CORPORATIONS. 
CHARTER  PARTY.     See  INSURANCE,  4. 

SHIPS  &  SHIPPING,  5. 

CITIZEN.    See  TAXES,  as  to  duty  of,  in  performing  public  services,  without 
compensation. 

COLLECTORS  OF  COUNTY  LEVIES  AND  TAXES. 

1.  By  the  act  of  1825,  ch.  162,  sec.  8,  the  collector  of  the  school  tax  is 

to  be  appointed  by  the  taxable  inhabitants  of  the  district,  and  by 
the  llth  section  he  is  required  to  give  bond,  with  security,  to  the 
satisfaction  of  the  trustees,  for  the  faithful  discharge  of  his  official 
duties.  The  election  to  be  valid  must  be  made  by  the  taxable  in- 
habitants. Burgess  vs.  Pue,  11. 

2.  The  act  of  1839,  ch.  90,  makes  no  change  in  the  power  of  appoint. 

ing  such  a  collector.     Ib. 

3.  A  collector  of  taxes  not  selected  by  competent  authority,  although 

he  gives  bond  for  the  discharge  of  his  duties,  has  no  legal  warrant 
to  act,  and  all  his  proceedings  are  tortious  and  unlawful.  Ib. 

4.  In  an  action  of  replevin,  brought  by  a  taxable  inhabitant  againt  a  col- 

lector of  the  school  tax,  to  recover  property  seized  for  non-payment 
of  such  tax,  due  for  1843,  having  filed  his  affidavit  on  which  he  ob- 
tained the  wiit,  affirming  that  the  property  had  been  unlawfully  taken 


INDEX.  513 

COLLECTORS  OF  COUNTY  LEVIES  AND  TAXES— Continued. 

by  such  collector,  he  cannot  maintain  that  the  school  district  is  disor- 
ganized, and  the  powers  of  the  taxables  suspended  by  reason  of  in- 
formalities in  the  proceedings  of  such  district,  for  the  year  1842. 

Ib.  254. 

5.  Nor  that  the  election  for  1843  was  void,  because  the  minutes  of  the  pro- 

ceedings of  the  taxables  did  not  state  every  thing  to  have  been  done, 
which  the  law  requires  to  be  done  ;  as,  that  the  election  should  be  by 
ballot.  It  is  not  necessary  that  the  mode  of  election  should  appear 
on  the  minutes,  nor  that  they  should  show  the  clerk  had  bonded.  Ib, 

6.  In  such  an  action,  the  collector  need  not  offer  proof  of  his  qualification. 

He  is  an  officer  de facto,  and  in  the  absence  of  proof,  no  presumption 
is  to  be  made  against  his  qualification.  Ib. 

7.  Persons  acting  publicly  as  officers  of  a  corporation,  are  presumed  to  be 

rightfully  in  office.    Ib. 

8.  An  election  by  a  corporation,  contrary  to  its  charter,  is  voidable  ;  yet 

if  an  officer  has  come  in  under  color  of  right,  and  not  in  open  con- 
tempt of  all  rights  whatever,  he  is  an  officer  de  facto.  Ib. 

9.  By  the  act  of  1st  April  1841,  ch.  23,  imposing  a  direct  tax  of  twenty 

cents  in  the  hundred  dollars,  it  was  designed,  that  such  tax  should  be 
paid  into  the  treasury,  and  the  collector's  commissions  by  the  coun- 
ties or  cities  respectively  making  the  levy,  by  an  additional  levy,  and 
not  by  the  treasury.     Seidenstricker  vs.  State,  374. 
See  TAXES. 
COMPOSITION  MONEY. 

See  LAND  OFFICE,  3. 
CONSTITUTIONAL  LAW. 

1.  The  legislature  may  delegate  the  power  of  taxation  to  the  taxable 

inhabitants,  for  the  purpose  of  raising  a  fund  for  the  diffusion  of 
knowledge  and  the  support  of  primary  schools,  within  their  respec- 
tive school  districts.  Burgess  vs.  Pue,  11. 

2.  Grants  of  similar  powers  to  other  bodies,  for  political  purposes,  have 

been  coeval  with  the  Constitution  itself,  and  no  serious  doubts  have 
ever  been  entertained  of  their  validity.  Ib. 

3.  The  legislature  have  no  power  in  any  given  determination  of  the 

Court  of  Appeals,  to  declare  what  would  be  the  rights  of  the  par- 
ties. That  is  a  judicial  power  which  the  legislature  does  not  pos- 
sess. Prout  et.  al.  vs.  Berry  and  wife,  147. 

4.  Where  the  Court  of  Chancery,  in  1838,  directed  certain  parties  to  a 

cause,  to  pay  their  proportion  of  certain  annuities,  and  the  persons 
supposed  to  be  aggrieved  had  lost  their  right  of  appeal  by  lapse  of 
time,  and  in  1843  obtained  an  act,  by  which  this  court  was  autho- 
rised and  required  to  take  cognizance  of,  and  hear  and  determine 
the  said  cause  "in  manner  and  to  every  effect  as  if  sucli  transcript 
had  been  in  due  time  transmitted."  HELD,  that  this  court  was 
bound  to  presume,  that  in  compliance  with  the  order  of  1838,  the 
appellees'  proportion  of  the  annuity  had  been  paid,  and  could  not 

65     v.2 


514  INDEX. 

CONSTITUTIONAL  LAW—  Continued. 

determine  the  case  in  manner,  and  to  every  effect,  as  if  the  appeal 
had  been  taken  in  due  time.  Ib. 

5.  A  legislative  act  authorising  an  appeal  must  either  be  capable  of  be- 

ing complied  with  by  the  court,  and  the  terms  of  the  grant  fol- 
lowed, or  the  act  must  be  unconstitutional.  Ib. 

6.  Tho  legislature  may  pass  laws  conferring  on  this  court  the   rigiit 

to  hear  appeals  in  special  cases,  after  the  time  allowed  by  the 
general  law  had  passed  by ;  but  such  a  law,  to  have  efficacy,  must 
leave  the  court  untrammelled,  as  to  the  mode  or  manner  of  admin- 
istering justice.  Ib. 

7.  The  legislature  had  the  right  to  delegate  to  those  appointed  to  exercise 

them,  viz  :  the  taxable  inhabitants,  the  powers  given  by  the  act  of 
1825,  ch.  162.  The  individuals  to  whom  those  powers  were  delega- 
ted, ought  to  conform  to  tht  provisions  of  the  law  under  which  they 
act ;  but  the  minutes  of  their  proceedings  need  not  show  all  the  facts 
necessary  to  give  them  jurisdiction.  Governed  by  the  nature  of  the 
trust  conferred,  and  the  great  confidence  reposed  by  the  law  in  the 
judgment  of  such  inhabitants,  the  court  will  presume  any  thing 
which  the  law  requires  to  be  done,  to  be  rightly  done,  until  the  con- 
trary appears.  Burgess  vs.  Pue,  254- 

8.  The  collection  of  wharfage  upon  a  public  wharf,  is  a  fit  subject  for  State 

legislation.     City  of  Baltimore  vs.  White,  444. 

9.  All  the  property  of  banks,   &c.,  the   stock  of  which    was  assessed 

and  taxed,  being  exempted  from  taxation,  the  taxation  of  their 
stock  is  constitutional.  State  vs.  Mayhew,  487. 

10.  The  act  of  1843,  is  a  legitimate  exercise  of  power,  incident  to  the 

sovereign  right  of  levying  taxes  for  the  support  of  government.   Ib. 

11.  The  General  Assembly  has  the  right,  by  legislation,  to  impose  npon 

all  property  within  the  State,  a  just  and  proportionately  equal  public 
tax  ;  to  provide  all  means,  details  necessary,  for  its  speedy  collection, 
by  summary  process  of  execution,  or  other  reasonable  or  available 
means.  Ib. 

12.  A  power  exercised  by  the  General  Assembly,  from  the  adoption  of  our 

Constitution  till  the  present  time,  a  period  of  nearly  seventy  years, 
ought  to  be  deemed  almost  conclusive  evidence  of  its  possession  by 
that  body.  Ib. 

13.  A  cotemporaneous  construction  of  the  constitution  of  such  duration, 

continually  practised  under,  and  through  which,  many  rights  have 
beon  acquired,  ought  not  to  be  shaken,  but  upon  the  ground  of  mani- 
fest error  and  cogent  necessity.  76. 

14.  A  citizen  is  not  necessarily  discharged  from  the  obligation  to  perform 

a  duty  enjoined,  by  law,  for  the  public  good,  because  it  imposes  on 
him  some  additional  labor,  trouble  and  expense ;  as  to  perform 
militia  duty,  vote  at  the  election  of  public  officers,  furnish  true 
statements  to  assessors,  obey  the  summons  of  executive  officers,  or 
arrest  felons :  in  these,  and  other  instances,  the  citizen  must  obey 
the  law.  74. 


INDEX.  515 

CONSTRUCTION. 
See  DEED. 

INSURANCE,  4. 

SHIPS  AND  SHIPPING,  5. 

WILL  AND  TESTAMENT,  6,  9. 

CONSTRUCTION  OF  ACTS  OF  ASSEMBLY. 

1.  By  the  act  of  1834,  ch.  336,  (passed  21st  March  1835,)  any  surety 

for  the  appearance  of  an  insolvent  petitioner  is  authorised  to  bring 
him  into  court,  or  before  any  judge  thereof,  as  special  bail  may 
bring  their  principal  into  court,  and  when  brought  in,  to  surrender 
and  commit  him,  provided  that  he  be  so  surrendered  before  or  at  the 
first  term  to  which  suit  shall  bo  brought  upon  the  bond  for  the  ap- 
pearance of  such  petitioner.  HELD  : 

1st.  That  such  bonds  are  now  assimilated  to  bail  bonds. 
2nd.  That  the  act  applied  to  a  bond  executed  on  the  12th  March 
1835,  the  condition  of  which  was  not  broken  at  the  date  of  the 
passage  of  the  act  of  1834,  ch.  336,  and  modified  the  remedy 
thereon.     State,  use  of  Holton  vs.  Burk  et.  al.,  79. 

2.  The  construction  of  a  statute  in  every  part  of  the  State  must  be  the 

same  ;  a  practice  in  a  particular  part  of  the  State,  inconsistent  with 
its  letter  and  spirit,  cannot  repeal  it.  Walter  et  al.vs.  Alexander 
and  wife,  204. 

See  CONSTITUTIONAL  LAW,  4,  5.  6, 
DOWER,  4,  5. 

EXECUTOR  AND  ADMINISTRATOR,  5. 
RAIL  ROAD  CORPORATIONS, 
TAXES. 

CONTINUANCE.     See  PRACTICE,  25,  26. 
CONTRACT. 

1.  Upon  a  contract  to  sell  a  part  of  a  tract  of  land  called  G.  Manor,  sup- 

posed to  contain  988  1-2  acres,  more  or  less,  at  the  price  of  nine 
dollars  per  acre,  the  parties  intended  that  the  number  of  acres 
should  be  fixed  by  the  contract,  and  not  by  subsequent  measurement. 
Unless  the  words  more  or  less  lead  to  such  a  conclusion,  they  are 
useless  and  insensible ;  made  in  good  faith,  they  qualify  the  repre. 
sentation  of  quantity.  Jones  vs.  Plater,  125. 

2.  A  contract  must  be  interpreted  by  its  terms.     Ib. 

3.  When  a  tract  of  land  is  sold,  supposed  to  contain  998  1-2  acres,  more 

or  less,  the  number  of  acres  is  not  of  the  essence  of  the  contract, 
and  a  deficiency  of  55  acres  in  such  a  case,  is  not  of  such  a  cha- 
racter as  to  induce  belief  of  fraud  or  mistake.  11. 

4.  Parties  to  contracts  are  assumed  to  know  the  liabilities  imposed  on  them 

by  the  law,  and  juries  are  not  from  evidence  to  infer,  their  ignorance 
of  such  liabiltiy.  Ib. 

5.  Where  a  corporation  executes  a  note  which  its  charter  does  not  autho- 

rise, the  payee  may,  for  value,  stipulate  with  a  thiid  party  that  it  shall 


516  INDEX. 

CONTRACT -Continued. 

be  paid,  and  will  not  then  be  permitted  to  urge  the  invalidity  of  the 
Company  to  make  it.  He  was  capable  to  bind  himself  to  pay  the  debt, 
if  it  should  not  be  paid  at  maturity.  15. 

6.  Upon  the  single  bill  of  B,  dated  20th  July  1827,  promising  to  pay 
the  "heirs,  administrators  or  assigns,  of  the  estate  of  D,  deceased," 
an  action  was  commenced  by  the  administrators  of  D,  on  the  8th 
February  1839.  The  writ  was  regularly  renewed  from  term  to  term, 
until  November  term,  1839,  when  it  was  suggested,  that  the  said  let- 
ters of  administration  had  been  revoked  and  granted  anew  to  S,  who 
sued  out  another  writ,  in  his  own  name,  to  the  next  succeeding  term  ; 
which  being  returned  non  est,  and  regularly  renewed  for  several  terms, 
he  then  procured  an  attachment.  This  was  levied  and  returned.  The 
defendant,  now,  gave  special  bail  and  appeared,  and  the  last  adminis- 
trator declared  against  him  on  the  single  bill,  specially  stating  the 
revocation  of  the  first  letters.  HELD  :  That  it  was  uncertain,  upon 
the  face  of  these  instruments,  to  whom  they  were  to  be  delivered,  or 
in  whose  name  a  suit  must  be  brought;  that  no  action  could  be  brought 
on  them ;  and,  that  limitations  were  a  bar  to  the  action.  Bennington 
vs.  Dinsmore,  348. 

CORPORATIONS. 

1.  In  the  case  of  corporations,  the  recording  of  an  official  bond  is  not 
essential  to  its  validity,  unless  it  be  so  expressly  declared.  Burgess 
vs.  Pue,  254. 

2  A  vote  or  resolution,  appointing  an  agent  for  a  corporation,  need  not 
be  entered  on  the  minutes,  but  may  be  inferred  from  the  fact  of  accept- 
ing his  services,  or  permitting  him  to  act,  11). 

3.  Persons  acting  publicly  as  officers  of  a  corporation,  are  presumed  to  be 

rightfully  in  office.     Ib. 

4.  An  election  by  a  corporation,  contrary  to  its  charter,  is  voidable ;  yet  if 

an  officer  has  come  in  under  color  of  right,  and  not  in  open  contempt 
of  all  rights  whatever,  he  is  an  officer  de  facto.  Ib. 

5.  The  act  of  1832,  ch.  280,  is  not  repealed  by  the  act  of  1834,  ch.  89. 

The  latter  gives  to  the  creditors  of  foreign  corporations  an  additional 
remedy.     Georgia  Ins.  fy  Trust  Co.  vs.  Dawson,  365. 
See  RAIL  ROAD  CORPORATIONS. 

TAXES,  for  Tax  on  Stock  of. 
COURT  OF  CHANCERY. 

1.  A  bill  dismissed  under  a  rule  for  further  proceedings,  does  not  pre- 

clude the  compliiinant  from  using  any  defence  at  law  which  he 
might  otherwise  have  used.  Isaac  and  wife,  lessee  vs.  Clarke,  1. 

2.  Agents  are  not  permitted    to  deal  validly  with  their  principals  in 

any  case,  except  where  there  is  the  most  entite  good  faith,  and  a 
full  disclosure  of  all  facts  and  circumstances,  and  an  absence  of  all 
undue  influence,  advantage,  or  imposition.  Brooke  et.  al.  vs. 
Berry,  83. 

3.  Circumstances  in  the  conduct,  action,  and  life  of  a  grantor,  stated 

and  discussed,  from  which  a  court  of  equity  will  infer  his  mental 


INDEX.  517 

COURT  OF  CHANCERY— Continued. 

imbecility,  or,  that  undue  influence  had  been  exercised  towards  him 
by  his  general  agent.  Ib. 

4.  Where  a  general  agent  obtains  from  his  principal  a  conveyance  of 

lands  at  a  price  greatly  below  their  value,  this  will,  of  itself,  induce 
a  court  of  equity  to  set  aside  the  contract ;  unless  it  appeared  to 
have  been  entered  into,  in  a  way  and  under  circumstances,  that  there 
had  been  no  abuse  of  confidence,  no  undue  influence,  no  imposition, 
or  material  concealment  practised  by,  the  agent  on  his  principal, 
which  could  cast  a  shade  of  doubt  as  to  the  fairness  and  honesty 
of  the  transaction.  Ib. 

5.  In  valid  contracts  between  principal   and  agent,  the  parties  should 

meet  on  equal  terms  ;  and  the  agent  is  bound  to  protect  the  interest 
of  his  principal,  with  the  same  care  and  circumspection,  that  he 
would  his  own  ;  if  he  does  not  thus  deal  with  his  principal,  his  con- 
tracts with  him  are  tainted  with  suspicion,  and  will  be  set  aside.  Ib. 

6.  Where  a  court  of  equity  vacated  a  conveyance  of  land  from  a  prin- 

cipal to  his  general  agent,  on  the  ground  of  constructive  fraud, 
and  of  which  land  the  grantee  had  possession,  and  decreed  a 
sale  of  the  premises,  it  also  decreed  an  account  between  the  par- 
ties, in  which  the  grantee  was  to  be  charged  with  the  rents  and 
profits  of  the  land,  and  credited  for  his  improvements  thereon, 
during  the  time  ho  held  and  enjoyed  the  lands,  under  his  alleged 
purchase ;  and  with  all  sums  by  him  bona  fide  paid,  on  account 
of  his  principal,  or  which  should  be  justly  due  and  owing  from 
him  to  his  agent.  Ib. 

1.  Where  a  complainant  alleged  the  existence  of  a  contract  with  the 
defendant,  accompanied  with  collateral  circumstances,  and  called 
upon  him  not  to  state  what  the  contract  was,  but  to  admit  or 
deny  the  existence  of  the  agreement  and  circumstances  set  forth  ; 
and  the  defendant,  in  his  answer,  averred  another  agreement  be- 
tween him  and  the  complainant,  and  denied  the  collateral  circum- 
stances :  the  statement  of  the  agreement  by  the  defendant  in  such 
case  is  not  simply  responsive  to  the  contract  he  was  called  on  to 
admit  or  deny.  It  is  not  such  a  denial  as  requires  two  witnesses,  or 
one  with  concurring  circumstances  to  disprove  it ;  nor  in  this  case 
was  it  necessary  to  disprove  the  denial  of  the  collateral  circum- 
stances by  the  same  amount  of  proof.  Jones  ts.  Belt,  106. 

8.  A  defendant  cannot  exempt  himself  from  the  obligation  to  make  a 

conveyance  which  he  stipulated  to  make,  on  the  ground  that  he  has 
not  the  legal  title.  76. 

9.  A  vendee,  against  whom  a  decree  for  specific  performance  of  a  con- 

tract of  purchase  is  sought,  may  object  the  want  of  title  in  his 
vendor,  as  insuperable  in  ordinary  cases.  Ib. 

.10.  Ordinarily  Chancery  will  not  compel  a  purchaser  to  pay  the  purchase 
money  and  accept  a  defective  title.  But  a  vendor  has  no  interest 
in  setting  up  his  own  want  of  title,  Ib. 


518  INDEX. 

COURT  OF  CHANCERY— Continued. 

11.  A  decree  which  refers  to  the  bill  for  a  description  of  the  lands  on 

which  it  is  intended  to  operate,  is  not  vague  and  uncertain  in  that 
respect.  lb. 

12.  A  sheriff  who  has  made  a  levy  upon  personal  property,  under  a  writ 

of  fieri  facias,  in  good  faith  apprehending  danger  of  loss  by  reason 
of  the  conflicting  claims  made  upon  it,  is  entitled  to  have  the  title 
of  the  claimant  settled  in  equity,  and  be  protected  in  the  mean 
while  by  injunction.  Ridenour  et.  al.  vs.  Keller,  134. 

13.  The  accounts  of  an  administratrix,  making  a  distribution  of  her  in- 

testate's estate  in  money,  no  creditor  nor  fraud  appearing,  will  not, 
after  a  lapse  of  sixteen  years,  be  disturbed  in  equity,  where  she  was 
guardian  to  her  infant  children,  and  paid  them  the  interest  on  the 
sum  distributed  to  them  during  her  life,  and  her  successor  in  the 
guardianship  received  the  amount  distributed,  from  her  personal 
representative,  though  she  had  taken  to  her  own  account,  certain 
portions  of  her  intestate's  estate  at  their  appraised  value,  which  por- 
tions remained  in  esse  at  the  time  of  her  death,  lb. 

14.  The  court  will  presume  that  distribution  of  an  intestate's  estate,  had, 

after  a  lapse  of  four  years,  been  made,  where  creditors  were  not 
interested;  no  charge  of  fraud  made;  and  it  appearing  that,  all  the 
distributees  had  received  their  proportions  of  the  appraised  value  of 
the  estate  in  money,  and  some  of  them  had  disposed  of  the  same.  lb. 

15.  Where  an  administratrix  took  a  portion  of  her  intestate's  estate,  to 

her  own  account,  at  the  appraisement,  and  paid  the  distributees 
their  portions  of  the  estate  in  money,  which  they  kept  for  four 
years,  and  alleged  no  fraud ;  the  distributees,  seeking  to  set  aside 
her  settlements,  must  first  do  equity,  and  return  what  they  have 
received,  or  offer  so  to  do.  lb. 

16.  Where  the  Court  of  Chancery,  in  1838,  directed  certain  parties  to  a 

cause,  to  pay  their  proportion  of  certain  annuities,  and  the  persons 
supposed  to  be  aggrieved  had  lost  their  right  of  appeal  by  lapse  of 
time,  and  in  1 843  obtained  an  act,  by  which  this  court  was  authorised 
and  required  to  take  cognizance  of,  and  hear  and  determine  the  said 
cause  "in  manner  and  to  every  effect  as  if  such  transcript  had  been  in 
due  time  transmitted."  HELD,  that  this  court  was  bound  to  presume, 
that  in  compliance  with  the  order  of  1838,  the  appellees'  proportion  of 
the  annuity  had  been  paid,  and  could  not  determine  the  case  in  man. 
ner,  and  to  every  effect,  as  if  the  appeal  had  been  taken  in  due 
time.  Prout  et  al.  vs.  Berry,  147. 

17.  M,  by  his  last  will,  devised  to  one  of  his  three  sisters,  certain  real 

estate  in  fee,  and  constituted  her  his  residuary  legatee,  and  devisee ; 
he  bequeathed  to  her  all  his  "money,  choses  in  action,  and  all  the  rest, 
residue,  and  remainder  of  my  (his)  property,  real,  personal  and  mix- 
ed, (not  hitherto  devised  or  bequeathed,)  of  which  I  am  now  pos. 
sessed,  or  of  which  I  may  be  possessed,  at  the  time  of  my  death,  to 
her,  her  heirs  and  assigns,  forever."  M  also  devised  real  and  person- 
al estate,  in  trust,  for  his  other  two  sisters.  After  the  publication  of 


INDEX.  519 

COURT  OF  CHANCERY— Continued. 

this  will,  the  testator  purchased  other  real  estate,  and  died  without 
republishing  it.  HELD,  that  the  two  sisters,  who  took  trust  estates, 
could  not  also  claim  as  heirs  at  law,  their  proportion  of  the  after  ac- 
quired estate ;  which,  in  this  case  the  testator  intended  to  pass  under 
the  residuary  clause.  McElfresh  adm'r  vs.  Schley  and  Barr,  181. 

18.  No  person  will  be  compelled  to  make  an  election  unless  the  inten- 

tion of  the  testator  be  sufficiently  made  out.  There  never  can  be  a 
case  of  implied  election,  but  upon  a  presumed  intention  of  the  tes- 
tator. Ib. 

19.  The  degree  of  intention  necessary  to  raising  a  case  of  election,  must 

plainly  appear  on  the  face  of  the  will.     Ib. 

20.  Where  a  testator  declares  in  express  terms  his  design  to  make  T.  his 

residuary  devisee,  and  explicitly  announces  of  what,  by  devising  to 
her  the  remainder  of  the  property  of  which  he  was  then  possessed, 
or  of  which  he  might  be  possessed,  at  the  time  of  his  death;  this  is 
evidence  of  his  intention  to  devise  all  the  estate  of  which  he  might 
die  possessed ;  and  upon  the  equitable  principles  of  election,  is  a 
devise  to  that  extent.  Ib. 

21.  The  doctrine  of  equitable  election  is  as  applicable  to  an  heir  at  law, 

as  to  other  devisees ;  and  may  result,  either  from  an  express,  or  an 
implied  condition.  Ib. 

22.  A  man  shall  not  take  a  benefit  under  a  will,  and  at  the  same  time 

defeat  the  provisions  of  the  instrument ;  if  he  claims  an  interest 
under  it,  he  must  give  full  effect  to  it,  as  far  as  he  is  able.  He 
cannot  take  what  is  devised  to  him,  and  at  the  same  time,  what  is 
devised  to  another ;  hence,  he  must  elect  which  he  will  take  of  the 
two  devises.  Ib. 

23.  The  rule,  that  a  will  is  inoperative  to  pass  lands  acquired  after  its 

execution,  will  not  prevent  the  application  of  the  doctrine  of  elec- 
tion. Ib. 

24.  Void  wills,  as  of  femes  covert,  or  infants,  do  not  demand  an  election  ; 

so  a  will  not  executed  according  to  the  statute  of  frauds,  creates  no 
case  of  election,  from  implication.  Such  wills  cannot  be  read  as 
evidence.  Ib. 

25.  The  modern   English  cases  do  not  enlarge  the  principle  of  elec- 

tion.    Ib. 

26.  The  court  will   fix  a  time,  in   their  decree,  within  which   a  devisee 

bound  to  elect,  must  make  an  election ;  and  if  the  election  is  not 
to  take  the  estate  in  fact  used  and  enjoyed  under  the  will,  the 
court  will  further  decree  an  account  of  rents  and  profits  of  the  part 
so  held  and  used.  Ib. 

27.  An  equitable  title  to  vacant  lands,  will,  in  equity,  prevail  against  a  legal 

title,  when  the  party  possessed  of  the  legal  title,  has  procured  it  by 
means  of  fraudulent  representations  to  the  officers  of  the  land  office. 
Upon  a  bill,  in  such  case,  the  patent  will  be  vacated  in  favor  of  the 
equitable  title,  or  the  patentee  decreed  to  convey  the  land  to  the  in- 
jured party.  Hoye  vs.  Johnston,  291. 


520  INDEX. 

COURT  OF  CHANCERY— Continued. 

28.  P  sold  a  tract  of  land  to  T  for  $'8000  ;  of  which,  $1000  was  secured 

by  the  vendee's  notes;  $2000,  due  in  1841  and  1842,  secured  by  the 
vendee's  notes  with  W,  as  endorser;  and  the  balance  of  $5000,  due 
from  1843  to  1847,  secured  by  the  vendee's  notes  with  D  and  <S  as 
endorsers.  The  vendee  died  insolvent.  The  vendor  recovered  judg- 
ment, at  law,  against  W,  and  then  proceeded  in  equity  to  sell  the  land, 
which  he  purchased  in  at  $4000.  Upon  a  bill,  filed  by  W  to  compel 
P  to  apply  the  $4000  in  discharge  of  the  notes  first  due,  and  to  re- 
strain his  proceedings  at  law  upon  his  judgments,  HELD:  that  the 
product  of  the  sale  should  be  so  applied,  under  the  direction  of  the 
Court  of  Chancery,  as  would  give  full  security  to  the  vendor,  which 
might  be  done  by  enquiring  into  the  pecuniary  condition  of  the  sure- 
ties. Welch  vs.  Parran  et  al  320. 

29.  If  any  one  of  the  sureties  should  be  found  unable  to  pay,  then  the  ven- 

dor shouid  be  secured  by  applying  so  much  of  the  proceeds  of  sale,  as 
would  extinguish  the  note  thus  endangered.  Ib. 

30.  The  vendor  is  entitled  to  full  payment  from  the  one  security  or  the 

other;  or  if  one  is  insufficient,  from  the  additional  security.  The  en- 
dorsed notes  are  to  be  considered  as  additional  securities.  Ib. 

31.  The  vendor  is  not  bound  to  wait,  during  the  time  occupied  in  ascertain- 

ing the  condition  of  the  securities,  but  as  the  notes  become  due  may 
enforce  them  at  law.  Ib. 

32  Such  of  the  sureties  as  pay,  may  be  subrogated  to  the  rights  of  the  ven- 
dor, to  the  extent  of  any  interest  they  may  have  in  the  purchase 
money.  Ib. 

33.  Where  a  will  devising  real  property  authorized  its  sale  upon  the  con- 
sent of  the  testator's  widow,  her  consent,  to  a  decree  for  the  sale,  is 
a  sufficient  compliance  with  the  requisition  of  the  will.  Tyson  vs. 
Mickle  et  al.,  376. 

84.  Improvement  in  price,  arising  from  a  general  enhancement  in  value 
since  the  sale,  is  no  ground  for  setting  aside  a  sale  made  under  a  de- 
cree. Ib, 

35.  The   ratification  or  rejection  of  a  sale,  must  depend  on  the  state  of 

circumstances  existing  at  its  date,  not  on  subsequent  contingencies  ; 
depreciation  of  property  is  at  the  risk  of  the  purchaser,  and  he  must 
reap  the  fruits  of  appreciation.  Ib. 

36.  A  judgment  creditor  issued  a.fi.fa.,  and  sold  the  land  of  his  debtor.  The 

sheriff,  without  his  consent,  gave  time  to  the  purchaser  to  pay  for  the 
laud,  and  the  purchase  money  not  being  all  paid,  the  creditor  ordered 
the  sheriff  to  proceed  to  a  re-sale  of  the  property  levied  on.  The 
debtor  is  not  entitled  to  an  injunction  to  stay  such  re-sale.  Hardes- 
ty  vs.  Wilson,  481. 

37.  In  a  proceeding  in  equity  where  the  sheriff  is  no  party,  the  conduct  of 

that  officer  cannot  be  inquired  into.     Ib. 
See  DOWER. 

EVIDENCE,  15  to  20. 
FRAUD,  3. 

PRACTICE  IN  CHANCERY. 
TRUSTS — TRUSTEES. 


INDEX.  521 

DAMAGES. 

See  ACTION  UPON  THE  CASE,  1,  2,  3,  4. 
BOND,  1. 

EXECUTION,  10, 11, 12, 13,  14. 
JUDGMENT, 1. 
REPLEVIN,  12. 

DEBT. 

1.  An  action  of  debt  cannot  be  maintained  upon  a  deed  of  mortgage, 
reciting  that  the  grantee  was  indebted  to  the  grantor  in  a  sum  cer. 
tain,  and  that  the  deed  was  executed  for  the  better  securing  the  pay- 
ment thereof,  with  a  proviso,  after  the  habendum  of  the  instrument, 
that  upon  payment  of  the  money  the  deed  should  be  void,  there 
being  no  covenant  in  the  deed  to  pay  the  debt.  Barrell  vs.  Glover 
et.  al,  171. 

DECREE.     See  COURT  OF  CHANCERY,  11. 

EVIDENCE,  45,  46,  for  effect  of,  collaterally. 

DEED. 

1.  The  court  cannot  say  that  a  description  in  a  deed  for  land  is  too 

vague,  and  the  deed  void  for  uncertainty,  when  the  vagueness  and 
uncertainty  are  not  obvious  from  an  inspection  of  the  instrument. 
Isaac  and  wife's  lessee  vs.  Clarke,  1. 

2.  A  deed  capable  of  a  certain  location  is  sufficiently  certain  in  the  des- 

cription to  pass  title.     Ib. 

3.  The  act  of  1729,  ch.  8,  sec.  5,  requires  that  a  deed  for  personal  pro- 

perty, when  the  grantor  remains  in  possession,  shall  be  acknow- 
ledged before  one  justice  of  the  county,  where  the  grantor  resides. 
Where  the  acknowledgement  omitted  to  state  the  official  character 
of  the  officer  before  whom  it  was  made,  it  may  be  proved  by  the 
admissions  of  the  parties.  Dyer  vs.  Etnyre  and  Besore,  150. 

4.  That  act  prescribes  no  form  of  acknowledgment ;  it  does  not  require 

the  authority  of  the  justice  to  take  it,  to  appear  on  the  face  of  his 
certificate,  nor  is  it  necessary  to  state  that  the  justice  was  a  resi- 
dent of  the  county  where  he  acted.  Ib. 

5.  Where  the  justice,  taking  the  acknowledgment  of  a  deed  under  the 

act  of  1729,  ch.  8,  sec.  5,  does  not  reside  in  the  county  where  it 
was  taken,  the  instrument  is  as  inoperative,  as  if  the  person  taking 
the  acknowledgment  were  not  a  justice.  Ib. 

6.  It  an  acknowledgment  contrary  to  the  fact,  state  the  residence  of  the 

party  to  be  in  a  different  county  from  that  of  the  justice,  the  error 
may  be  proved,  and  the  instrument  established  under  the  act  of 
1729.  Ib. 

7.  A  false  statement  in  the  certificate  of  the  justice  may  be  disproved, 

and  an  instrument  thus  invalidated.    Ib. 

S.  The  case  of  Conelly  vs.  Bowie,  6  Harr.  and  John.  141,  cited  and  ex- 
plained. Hi. 

9.  Under  the  act  of  1729,  ch.  8,  sec.  5,  the  recording  of  a  bill  of  sale 
of  personal  property  within  twenty  days,  in  the  records  of  the  same 
county,  is  as  necessary  to  it  validity,  as  is  its  acknowledgment.  Ib. 

66    v.2 


522  INDEX. 

DEED— Continued. 

10.  Void  for  want  of  recording,  cannot  operate  as  a  covenant.    Ib. 

See  ESTOPPEL,  1,  2,  3,  4. 

VOID,  1. 

DELIVERY.     See  EVIDENCE,  as  to,  of  growing  crops,  28. 
DISTRESS.     See  LANDLORD  AND  TENANT. 
DOWER. 

1.  By  the  act  of  1318,  ch.  193,  SPC.  10,  it  is  enacted  :  "that  widows  shall 

be  entitled  to  dower  in  lands  held  by  equitable  title  in  the  husband, 
unless  the  same  be  devised  by  a  will,  made  before  the  passage  of  this 
act :  but  such  right  of  dower  shall  not  operate  to  the  prejudice  of  any 
claim  for  the  purchase  money  of  such  lands,  or  other  lien  on  the  same  ; 
and  tenants  by  the  courtesy,  shall  be  entitled  for  life  to  lands  held  by 
equitable  title,  but  not  to  the  prejudice  of  any  claim  for  the  purchase 
money  of  such  lands,  or  other  lien  on  the  same." — HELD  :  That  the 
owner  of  the  equity  of  redemption  in  fee,  having  mortgaged  the 
same,  prior  to  the  passage  of  this  act,  and  the  same  having  been  sold 
under  a  decree  obtained  upon  such  mortgage,  his  widow  was  not  enti- 
tled to  dower,  as  against  the  purchaser  at  such  sale.  Hopkins  et  al. 
vs.  Frey,  359. 

2.  If  the  equity  of  redemption  had  not  been  mortgaged  prior  to  the  act  of 

1818,  her  right  to  dower  thereout,  could  not  be  questioned.    Ib. 

3.  There  is  nothing  in  the  act  of  1818  which  authorises  the  opinion,  that 

an  equitable  estate  which  had  belonged  to  the  husband,  but  had  been 
mortgaged  before  the  passage  of  that  law,  and  sold  in  his  life  time,  is 
an  estate  of  which  his  widow  could  be  endowed.    Ib. 
devised  by  will  made  before  its  passage,  and  cannot  operate  to  the  pre- 

4.  The  act  refuses  dower  in  an  equitable  interest  in  lands,  if  the  same  be 

judice  but  of  those  creditors  and  heirs,  who  became  such  after  its 
enactment.  Ib. 

EDUCATION.     See  PRIMARY  SCHOOLS, 
EJECTMENT. 

1.  A  plaintiff  in  ejectment  cannot  offer  in  evidence  a  record  of  the  pro- 

ceedings upon  the  bill  of  the  defendant  in  Chancery  against  him, 
which  bill  had  been  dismissed  for  want  of  due  prosecution  upon  the 
motion  of  the  plaintiff,  for  the  purpose  of  precluding  the  defen- 
dant from  questioning  tho  plaintiff's  title  at  law,  though  the  object 
of  the  bill  was  to  vacate  such  title.  Isaac  and  wife's  lessee  vs, 
Clarke,  1. 

2.  A  bill  dismissed  under  a  rule  for  further  proceedings,  does  not  pre- 

clude the  complainant  from  using  any  defence  at  law  which  he 
might  otherwise  have  used.  Ib. 

3.  The  general  rule  is,  that  a  party  consenting  to  hold  as  lessee,  can- 

not afterwards  deny  the  title  of  his  acknowledged  landlord.     Ib. 

4.  There  aro  exceptions  to  this  rule ;  but  they  do  not  rest  on  the  fact, 

that  tho  acknowledgment  was  made  by  the  tenant  subsequent  to 
his  coming  into  possession,  or  that  he  originally  had  possession  un- 
der another  title.  Ib. 


INDEX.  523 

EJECTMENT— Continue  d. 

5.  The  circumstances  of  deception,  mistake,  or  other  grounds,  which 

exempt  a  tenant  from  the  influence  of  the  rule,  apply  as  well  to  the 
case  of  admissions  after  his  possession  commenced,  as  before.  Ib. 

6.  Where  a  party  is  in  possession,  and  enters  into  an  agreement  with 

another  claiming  the  land,  to  become  his  tenant,  he  is  within  the 
general  rule,  which  forbids  the  tenant  from  questioning  the  land- 
lord's title.  A  relation  thus  created  does  not,  per  se,  constitute  one 
of  the  exceptions  to  that  rule.  15, 

7.  The  court  cannot  say  that  a  description  in  a  deed  for  land  is  too  vague, 

and  the  deed  void  for  uncertainty,  when  the  vagueness  and  uncertainty 
are  not  obvious  from  an  inspection  of  the  instrument.  Ib. 

8.  A  deed  capable  of  a  certain  location  is  sufficiently  certain  in  the  descrip- 

tion to  pass  title.    Ib. 

9.  To  make  a  judgment  by  default,  a  bar  to  a  lease  under  the  statute  of  4 

Geo.  2,  the  record  must  disclose  such  facts  and  circumstances,  as 
will  justify  the  court  in  believing,  or  assuming,  that  in  rendering  its 
judgment,  the  court  below  designed  to  exercise  the  authority  confer- 
red on  it  by  that  statute.  Walter  et  aL  vs.  Alexander  and  wife,  204, 

10.  When  all  the  proceedings  in  ejectment,  until  long  after  the  judgment 

by  default,  show  it  to  have  been  an  ordinary  case  of  ejectment,  hav- 
ing no  connexion  with  the  statute,  there  is  nothing  to  warrant  the 
assumption,  that  the  judgment  was  rendered  under  the  authority  of 
the  statute.  Ib, 

11.  Where  the  affidavit  required  by  the  statute  was  filed  in  vacation,  at  a 

different  term  from  that  of  the  judgment,  and  more  than  ten  months 
after  its  rendition ;  and  which,  according  to  the  proof,  was  never 
shown  to  the  county  court,  this  court  will  not  assume  the  judgment 
was  given  on  the  affidavit,  according  to  the  obvious  import  and  design 
of  the  statute.  Ib, 

12.  The  affidavit  in  such  cases,  should  be  filed  before  the  judgment  by 

default  is  entered,  or  some  time  during  the  term  at  which  it  was 
rendered ;  so  that  before  the  judgment  became  absolute,  the  court 
may  have  had  an  opportunity  of  inspecting  and  adopting  the  affi- 
davit, as  the  basis  of  its  judgment.  Ib. 

13.  The  court  will  not  presume,  that  an  affidavit  was  filed,  pursuant  to 

the  statute,  after  a  lapse  of  seventeen  years,  where  it  clearly  appears, 
that  in  fact  it  was  not  so  filed  ;  yet  if  filed  in  time,  the  court  will 
be  presumed  to  have  discharged  their  duty  in  relation  to  it.  Ib, 

14.  The  variation  of  the  compass,  and  the  degree  of  it,  are  questions  of 

fact,  and  upon  evidence  affecting  the  degree  of  variation,  it  is  not 
for  the  court  to  say,  that  the  evidence  offered  by  one  party,  is  better 
than  that  offered  by  the  other,  to  guide  the  jury  in  determining 
whether  any,  or  what  allowance  shall  be  made  for  such  variation. 
Harlan  vs.  Brown,  475. 
See  LANDLORD  AND  TENANT. 
PRACTICE,  20,  21. 
RIPARIAN  PROPRIETOR, 


524  INDEX. 

ELECTION  IN  EQUITY. 

1.  No  person  will  be  compelled  to  make  an  election  unless  the  inten- 

tion of  the  testator  bo  sufficiently  made  out.  There  never  can  be  a 
case  of  implied  election,  but  upon  a  presumed  intention  of  the  tes- 
tator. McElfrcsh  adm'r  vs.  Schley  and  Barr,  181. 

2.  The  degree  of  intention  necessary  to  raising  a  case  of  election,  must 

plainly  appear  on  the  face  of  the  will.     Ib. 

3.  Where  a  testator  declares  in  express  terms  his  design  to  make  T  his 

residuary  devisee,  and  explicitly  announces  of  what,  by  devising  to 
her  the  remainder  of  the  property  of  which  he  was  then  possessed, 
or  of  which  he  might  be  possessed,  at  the  time  of  his  death;  this  is 
evidence  of  his  intention  to  devise  all  the  estate  of  which  he  might 
die  possessed ;  and  upon  the  equitable  principles  of  election,  is  a 
devise  to  that  extent.  H. 

4.  The  doctrine  of  equitable  election  is  as  applicable  to  an  heir  at  law, 

as  to  other  devisees  ;  and  may  result,  either  from  an  express,  or  an 
implied  condition.  Ib. 

5.  A  man  shall  not  take  a  benefit  under  a  will,  and  at  the  same  time 

defeat  the  provisions  of  the  instrument ;  if  he  claims  an  interest 
under  it,  he  must  give  full  effect  to  it,  as  far  as  he  is  able.  He 
cannot  take  what  is  devised  to  him,  and  at  the  same  time,  what  is 
devised  to  another ;  hence,  he  must  elect  which  he  will  take  of  the 
two  devises,  lit. 

6.  The  rule,  that  a  will  is  inoperative  to  pass  lands  acquired  after  its 

execution,  will  not  prevent  the  application  of  the  doctrine  of  elec- 
tion. //;. 

7.  Void  wills,  as  of  femes  covert,  or  infants,  do  not  demand  an  election  ; 

so  a  will  not  executed  according  to  the  statute  of  frauds,  creates  no 
case  of  election,  from  implication.  Such  wills  cannot  be  read  as 
evidence.  Ib. 

8.  The  modern   English  cases  do  not  enlarge  the  principle  of  elec- 

tion.   Ib. 

ENROLMENT. 

1.  A  prominent  object  of  our  enrolment  laws  is  the  protection  of  pur- 

chasers.   Addison  vs.  Hack,  221. 

2.  A  grant,  not  acknowledged,  nor  recorded,  of  a  power  to  divert  the 

course  of  a  stream,  which  flowed  through  the  grantor's  land,  but 
which  power  had  not  been  executed,  would  not  be  a  bar  to  a  subse- 
quent bonafide  purchaser,  for  a  valuable  consideration,  without  no- 
tice, claiming  the  water  right  naturally  incident  to  the  lands  he  had 
purchased.  To  interpose  such  a  bar,  in  such  a  case,  the  same  con- 
formity  to  the  registry  laws  is  necessary,  as  if  land  were  the  sub- 
ject  of  the  grant.  Ib. 

3.  The  permission  granted  by  the  Mayor  and  City  Council  of  Baltimore, 

to  extend  an  improvement  into  the  water,  to  an  owner  of  a  lot  adja- 
cent thereto,  is  not  within  our  registration  system.  City  of  Balti- 
more vs.  White,  444. 


INDEX.  525 

ENROLMENT— Continued. 

4.  That  system  sanctions  no  conveyance  of,  or  incumbrance  upon  real 

property,  created  by  matter  in  pais,  or  resting  in  parol.     Ib. 
See  CORPORATION.  2. 

DEED,  as  to  Chattels,  9, 

EQUITY  OF  REDEMPTION.    See  DOWER. 
ESCAPE.     See  EXECUTION- 
ESTOPPEL. 

1.  Where  a  defendant  obtained  an  absolute  bill  of  sale  for  a  vessel,  autho- 

rizing the  community  to  regard  him  as  the  owner  thereof,  he  cannot 
for  his  benefit,  be  permitted  to  allege  in  an  action  against  him,  by  a 
stranger  to  the  instrument,  that  it  is  a  mortgage.  Henderson  vs. 
Mayhew,  393. 

2.  Oral  proof  is  inadmissible,  to  change  or  contradict  the  terms  of  a  writ- 

ten instrument.     Ib. 

3.  Strangers  to  an  instrument,  when  authorised  to  impeach  or  contradict 

it,  may  offer  parol  testimony  for  that  purpose  ;  and  so  a  grantor  may 
in  a  controversy  with  a  grantee,  if  he  charges  the  same  to  have  been 
obtained  by  fraud  or  mistake.  Ib. 

4.  Parties  to  a  written  instrument  are  not  permitted,  in  controversies  with 

strangers,  to  insist,  that  it  does  not  express  what  it  was  intended  to  ex- 
press. Ib. 

5.  In  an  action  on  a  bond  given  by  a  trustee,  appointed  under  a  de- 

cree in  equity,  "well  and  truly  to  execute  the  trust  reposed  in  him 
by  the  said  decree,  or  which  shall  be  reposed  in  him  by  any  future 
decree  or  order  in  the  premises,"  brought  for  the  use  of  a  party, 
to  whom  a  portion  of  the  proceeds  of  the  property  sold  by  such  trus- 
tee had  been  ordered  to  be  paid,  to  recover  the  same,  it  is  not  com- 
petent for  such  trustee  to  question  the  correctness  of  the  original 
decree  for  a  sale ;  or  the  order  relative  to  the  distribution  of  the 
purchase  money.  Richardson  vs.  the  State,  use  of  Rawhngs,43$. 

6.  Where  an  ordinance  was  passed,  granting  permission  to  build  a  wharf, 

which  required  the  written  assent  of  the  applicant  for  such  permis- 
sion, and  it  appeared  that  he  erected  the  wharf,  the  law  will  presume 
such  written  assent,  and  the  grantor,  and  his  subsequent  assignees, 
will  be  estopped  from  denying  such  assent.  City  of  Baltimore  vs. 
White,  444. 
See  CONTRACT,  5, 

LANDLORD  AND  TENANT,  1,  2,  3,  4. 

EVIDENCE. 

1.  A  plaintiff  in  ejectment  cannot  offer  in  evidence  a  record  of  the  pro- 

ceedings upon  the  bill  of  the  defendant  in  Chancery  against  him, 
which  bill  had  been  dismissed  for  want  of  due  prosecution  upon  the 
motion  of  the  plaintiff,  for  the  purpose  of  precluding  the  defendant 
from  questioning  the  plaintiff's  title  at  law,  though  the  object  of  the 
bill  was  to  vacate  such  title.  Isaac  and  wife's  lessee  vs.  Clarke,  1. 

2.  A  bill  dismissed  under  a  rule  for  further  proceedings,  does  not  pre- 

clude the  complainant  from  using  any  defence  at  law  which  ho 
might  otherwise  have  used.  Ib. 


526  INDEX. 

EVIDENCE— Continued. 

3.  In  an  action  brought  by  the  owner  of  a  fee  against  a  company  for 

having,  after  the  construction  of  their  road  through  his  land,  (the 
benefits  of  which  construction  to  the  plaintiff  had  been  submitted 
to  jurors  upon  an  inquisition  to  condemn  the  land,)  abandoned  the 
same,  and  constructed  the  road  anew  in  another  location,  off  the 
plaintiff's  land,  the  plaintiff  cannot  give  evidence  of  the  damage 
which  would  accrue  to  him  from  such  original  construction  inde^ 
pendent  of  the  inquisition.  B.  <$•  S.  Rail  Road  Co.  vs.  Compton 
et.  al.,  20. 

4.  In  an  action  on  a  testamentary  bond,  the  equitable  plaintiff  claimed 

under  a  residuary  clause  in  the  will  of  H,  executed  in  1838,  and  ad- 
mitted to  probat  in  the  same  year,  one-third  of  the  residue  of  the 
testator's  personal  estate  of  which  he  might  die  possessed.  Upon 
an  issue  denying  the  facts  of  the  replication,  the  defendant  gave  in 
evidence  an  indenture  made  by  the  testator  in  the  year  1832,  con. 
veying  to  his  executor,  the  defendant,  one-half  of  all  his  personal 
property  of  which  he  might  die  possessed,  and  which  had  also  been 
admitted  to  probat  by  the  orphans  court  as  a  testamentary  paper  of 
H.  HELD  :  that  the  indenture  was  evidence,  material,  competent, 
and  necessary  to  the  finding  of  a  proper  verdict  on  the  matters  in 
controversy,  as  a  part  of  the  will  of  H.  Hannon  et.  al.  vs.  the  State, 
use  of  Robey  and  wife,  42. 

5.  When  the  orphans  court  admits  two  papers  of  different  dates  to  probat 

as  testamentary  instruments  of  the  same  party,  and  holds  that  one  is 
not  a  revocation  of  the  other,  this  court  will  presume  that  the  orphans 
court  acted  correctly,  and  not  disturb  their  judgment  when  such  pa- 
pers are  incidentally  offered  in  evidence.  Ib. 

6.  The  orphans  court  may  receive  evidence  of  an  error  in  the  date  of  a 

will  offered  for  probat.     Ib. 

7.  In  an  action  on  a  sheriff's  bond,  for  an   alleged  permissive  escape  by 

the  sheriff  of  a  party  arrested  on  a  ca.  sa.,  which  that  officer  had 
returned  cepi,  the  plaintiff  may  show  that  such  return  is  untrue  in 
point  of  fact,  and  that  the  sheriff  had  not  the  body  of  the  defendant  in 
court,  at  the  return  day  of  the  writ,  ready  to  be  delivered  up  on  the 
demand  of  the  plaintiff.  State  use  of  Creecy  vs.  Lawson  et  al.,  62. 

8.  After  an  arrest  under  a  ca,  sa.,  and  a  permissive  escape  before  the  re. 

turn  day  has  been  proved,  the  burthen  of  showing,  that  the  sheriff  had 
the  body  of  the  defendant  in  court,  according  to  the  exigencies  of 
the  writ  and  his  return  of  cepi  thereto,  is  upon  the  sheriff.  Ib. 

9.  In  an  action  on  the  case  at  common  law  against  the  sheriff  for  an 

escape,  he  may  offer  evidence  in  mitigation  of  damages.  The 
amount  recovered  against  the  party  arrested,  is  not  conclusive  on 
that  question.  Ib. 

10.  The  sheriff's  return  is  prima  facie  evidence  of  the  truth  of  the  facts 

which  it  discloses.   Ib. 

11.  The  possession  by  the  plaintiff  of  a  paper  signed  by  the  defendant,  and 

on  which  the  former  had  brought  an  action  at  law,  is  sufficient  cvi- 


INDEX.  527 

EVIDENCE— Continued, 

clenco  from  which  the  jury  might  find  it  to  bo  the  agreement  of  the 
parties.  Benson  vs.  Bolder,  74. 

12.  Where  a  deed  to  a  party  is  impeached  as  fraudulent,  he  cannot  offer 

evidence  of  his  good  character  and  general  upright  conduct,  in  sup- 
port of  such  deed.  Brooke  et.  al.  vs.  Berry,  83. 

13.  The  feeble  intellect  of  a  grantor;    the  relation  of   principal  and 

general  agent  between  him  and  the  grantee ;  inadequacy  of  price 
for  land  conveyed  by  such  a  grantor  to  such  a  grantee ;  are  all 
circumstances  calculated  to  impeach  a  deed,  as  constructively  frau- 
dulent. ///. 

14.  Where  there  is  great  contrariety  of  evidence  as  to  the  feebleness  of  a 

grantor's  intellect,  as  twelve  witnesses  for  it  and  nine  against  it, 
the  admission  of  his  grantee,  his  general  agent,  that  such  grantor 
was  incapable  of  transacting  his  own  business,  will  corroborate  the 
affirmative  of  that  issue.  Ib. 

15.  Such  evidence  is  sufficient  to  control  a  defendant's  answer,  denying 

the  fact  of  mental  incapacity.     Ib- 

16.  The  effect  of  the  averages  of  witnesses  as  to  value  of  lands  and 

rents,  stated  and  discussed.     Jb. 

17.  The  value  of  land  ascertained  by  considering  its  annual  rents,  as 

equal  to  five  per  centum  on  such  value.     Ib. 

18.  It  is  a  general  rule,  that  a  positive  denial,  in  an  answer  of  the  con- 

tract stated  in  the  bill,  should  be  contradicted  or  outweighed  by  the 
proof  of  two  witnesses,  or  one  witness  and  pregnant  circumstances ; 
but  the  principle  on  which  it  is  predicated  is  not  one  of  universal 
application.  Jones  vs.  Belt,  106. 

19.  As  where  two  papers  were  exhibited  in  the  cause,  admitted  in  the 

defendant's  answer,  and  declared  by  the  court  to  be  the  agreement 
of  the  parties,  they  are  sufficient  to  control  the  answer  denying  the 
agreement,  without  the  aid  of  any  oral  testimony  in  their  support.  Ib. 

20.  The  cases  to  which  the  rule  was  introduced  to  apply,  must  be  those 

in  which  the  facts  denied  depended  on  oral  testimony ;  or  oral  and 
circumstantial  evidence ;  not  where  they  were  conclusively  proved 
by  the  production  of  the  written  contract  of  the  parties.  Ib. 

21.  Neither  are  the  exceptions   to  the  rule  confined  to  cases,  where  the 

contract  denied,  has  been  formally  signed  and  executed  ;  as  where 
a  verbal  contract  is  made,  to  which  no  witness  could  testify,  and  a 
complainant,  charging  and  seeking  its  performance,  were  to  exhibit 
with  his  bill  various  letters  written  by  the  defendant  to  third  par- 
ties, stating  the  contract,  all  which  letters,  the  answer  denying  the 
contract,  admitted  to  bo  genuine ;  this  would  dispense  with  the 
general  rule  in  question.  Ib. 

22.  Where  a  plaintiff  contracts  with  the  defendant's  agent,  in  an  action 

on  the  contract,  it  is  necessary  to  give  proof  that  the  agent  had  some 
authority.  Tiffany  vs.  Savage,  129. 


528  INDEX. 

EVIDENCE— Continue  d. 

23.  Where  the  bill  of  exceptions  contains  no  evidence  of  the  recording  of 

a  bill  of  sale,  the  usual  certificate  thereof  by  the  county  clerk,  not 
appearing  by  the  record  to  have  been  indorsed  on  the  bill  of  sale,  it  is 
not  admissible  in  evidence  in  an  action  at  law  between  the  credi- 
tors of  the  grantor,  and  a  defendant  claiming  to  rely  on  the  gran- 
tor's title.  Byer  vs.  Etnyre  and  Besore,  150, 

24.  The  statement  "at  the  request  of  Z.,"  (the  grantor)  "the  following 

bill  of  sale  was  recorded,"  not  signed  by  any  person,  preceding  a  bill 
of  sale  in  a  bill  of  exceptions,  where  the  admissibility  of  the  same 
as  evidence  was  objected  to,  is  no  proof  of  the  recording  of  such 
instrument.  Ib. 

25.  Where  permission  was  given  by  a  tenant  to  his  landlord  to  sell  grain 

growing  in  the  ground,  for  his  own  use,  on  the  premises,  and  in 
view  of  the  grain,  and  the  landlord  preceded  to  advertise  such  grain 
for  sale,  whether  such  facts  amounted  to  a  delivery  of  the  grain,  is  a 
question  dependent  upon  the  intention  of  the  parties,  to  be  passed 
on  by  the  jury.  76. 

26.  The  county  court  ought  not  to  be  called  upon,  to  submit  to  the  find- 

ing of  the  jury,  a  fact,  of  which  there  was  no  testimony.  Walter 
et.  al.  vs.  Alexander  and  wife,  204. 

27.  A  party  purchased  the  reversion  in  fee  of  a  lot,  described  as  subject  to 

a  ground  rent,  the  deed  for  the  reversion  being  for  less  ground  than 
the  original  lease.  Afterwards,  the  rent  not  being  paid,  the  purcha- 
ser of  the  reversion,  brought  his  action  of  ejectment  to  recover  pos- 
session; declared  according  to  the  lease,  and  recovered  judgment 
by  default,  and  possession.  Some  years  after,  the  lessee  brought 
another  action  for  the  premises  described  in  the  lease.  HELD:  that 
the  recovery  in  the  first  action,  being  for  more  land  than  the  plain- 
tiff was  entitled  to,  was  no  evidence  that  the  whole  reversion  of  the 
leased  premises  had  been  conveyed  to  the  plaintiff  in  that  action.  Ib. 

28.  D  sued  out  a  writ  of  replevin,  and  gave  the  usual  bond,  with  the  other 

defendants  as  his  sureties,  to  J;  at  the  trial  of  the  replevin,  the  defen- 
dant J  pleaded  non  cepit,  and  property  in  S;  and  the  plaintiff,  D, 
pleaded  property  in  himself.  The  issues  were  found  for  J,  with  a 
judgment  for  a  return  of  property.  In  an  action  on  the  replevin  bond, 
entered  for  the  use  of  S,  the  defendants,  D  and  his  sureties,  were 
permitted  to  prove  in  mitigation  of  damages,  that  the  property  really 
belonged  to  S,  that  J  had  no  personal  interest  in  it ;  and  maintain, 
that  he  could  recover  in  this  action  only  the  amount  of  damage  sus- 
tained by  him,  personally,  in  consequence  of  the  property  being  taken 
from  his  possession,  and  could  not  increase  the  damages  to  the  extent 
of  &s  right,  by  showing  that  he  was  her  agent.  Walter  use  of  Wal- 
ter vs.  Warfield  et  al ,  216. 

29  In  an  action  relating  to  lands,  if  the  defendant  does  not  take  defence 
on  warrant,  the  plaintiff  is  under  no  obligation  to  ask  for  a  warrant 
to  locate  his  land,  or  any  of  the  matters  in  controversy  between  the 
parties.  Addison  vs.  Hack,  221. 


INDEX.  529 

EVIDENCE— Continued, 

30.  In  such  case,  without  plots,  he  may  read  his  title  papers  in  evidence ; 

prove  his  possessions  under  them ;  and  show  by  oral,  and  other 
testimony,  the  injury  he  complains  of,  and  for  which  he  seeks  in- 
demnity. Ib, 

31.  Jn  an  action  for  damages,  for  diverting  the  course  of  a  stream  from  its 

natural  channel  on  the  plaintiff's  land,  the  defendant  may  show, 
that  the  diversion  was  made  on  his  lands  above  those  of  the  plain- 
tiff, and  that  it  was  rather  a  benefit,  than  an  injury  to  the  plaintiff; 
or  that  it  was  made  in  virtue  of  a  verbal  agreement  between  plain- 
tiff and  defendant,  that  the  latter  might  make  the  diversion,  for 
the  purpose  of  working  a  mill  to  be  erected  by  the  defendant  on  his 
own  land,  if  the  defendant  would  allow  the  plaintiff  the  use  of  a 
road  through  the  defendant's  land,  and  the  execution  of  such  agree- 
ment ;  or  that  the  plaintiff  entered  into  such  a  contract  with  the 
defendant,  conferring  the  privilege,  with  a  fraudulent  design,  and 
for  the  purpose,  of  extorting  money  from  him.  Ib. 

32.  Such  evidence  is  admissible  in  mitigation  of  damages ;  and  for  the 

purpose  of  showing  that  the  defendant  was  not  a  trespasser,  ab  initio, 
for  continuing  the  diversion  after  a  countermand  of  his  authority 
by  the  plaintiff;  or  that  he  could  not  be  made  responsible  in  dam- 
ages for  acts  done  upon  his  own  land,  with  the  verbal  permission 
and  authority  of  the  plaintiff.  Ib. 

33  A  vote  or  resolution,  appointing  an  agent  for  a  corporation,  need  not 
be  entered  on  the  minutes,  but  may  be  inferred  from  the  fact  of  accept- 
ing his  services,  or  permitting  him  to  act.  Burgess  vs.  Pue,  254. 

34.  Jn  an  action  to  recover  for  repairs  done  to  a  carriage  in  June  1837, 

the  plaintiff  offered  an  absolute  bill  of  sale  of  it,  from  M  to  thede. 
fendants,  dated  July  1836.  The  defendants,  for  the  purpose  of  show- 
ing that  the  bill  of  sale  to  them  was  designed  to  be  a  mortgage,  or 
a  conditional  sale,  and  to  rebut  the  inference,  that  M,  who  continued 
to  be  the  driver  of  the  carriage,  and  took  it  to  the  shop  of  the  plain- 
tiff, was  their  agent,  proposed  to  offer  in  proof,  entries  in  their 
Blotter,  Ledger,  and  account  books,  in  relation  to  the  transactions 
between  them  and  M;  HELD  inadmissible  to  modify  the  bill  of  sale, 
and  insufficient  to  rebut  an  agency  in  1837.  Rogers  and  Marfield 
vs.  Severson,  385. 

35.  Various  circumstances  in  relation  to  the  possession  and  ownership  of 

a  carnage  sent  to  a  mechanic  for  repairs  stated  and  considered* 
making  a  case  for  the  exclusive  consideration  of  the  jury,  whether 
the  repairs  were  made  by  the  authority  of  the  defendants.  Ib. 

36.  It  is  not  competent  to  show,  by  parol  proof,  that  a  bill  of  sale  was 

intended  to  be  a  mortgage ;  that  it  was  so  designed  and  agreed,  be- 
tween the  grantor  and  grantee.  Henderson  vs.  Mayhew,  393. 

37.  The  jury  are  exclusive  judges  of  the  weight  of  parol  evidence  offered 

to  them,  tending  to  prove  an  agency,     ///. 

38.  Oral  proof  is  inadmissible,  to  change  or  contradict  the  terms  of  a  writ- 

ten instrument.     Ib. 

67  v.2 


530  INDEX. 

EVIDENCE— Continued. 

39.  Strangers  to  an  instrument,  when  authorised  to  impeach  or  contradict 

it,  may  offer  parol  testimony  for  that  purpose  ;  and  so  a  grantor  may 
in  a  controversy  with  a  grantee,  if  he  charges  the  same  to  have  been 
obtained  by  fraud  or  mistake.  lb. 

40.  Parties  to  a  written  instrument  are  not  permitted,  in  controversies  with 

strangers,  to  insist,  that  it  does  not  express  what  it  was  intended  to  ex- 
press. Ib. 

41.  The  recital  in  a  mortgage  executed  and  delivered  by  R  to  G,  that  he 

stands  indebted  to  G  in  a  large  sum  of  money,  for  advances,  the 
amount  of  which  is  to  be  ascertained  upon  examination  of  their  ac- 
counts by  J  and  M,  mutually  appointed  by  R  and  G,  for  that  pur- 
pose, is  a  reference  of  a  mere  matter  of  calculation,  and  ascertainment 
as  to  the  amount  of  money  advanced  ;  an  ascertainment  in  conformity 
to  such  recital  does  not  merge  the  original  contract.  Randall  vs. 
Glenn,  430. 

42.  An  ascertainment  of  the  amount  due,  under  such  circumstances,  is 

competent  evidence,  in  an  action  of  debt  brought  by  G  against  R, 
for  money  lent,  advanced,  had,  and  received,  under  the  plea  of  nil 
debet,  as  an  admission  of  the  defendant  of  the  amount  due  the  plain- 
tiff, lb. 

43.  In  an  action  on  a  bond  given  by  a  trustee,  appointed  under  a  de- 

cree in  equity,  "well  and  truly  to  execute  the  trust  reposed  in  him 
by  the  said  decree,  or  which  shall  be  reposed  in  him  by  any  future 
decree  or  order  in  the  premises,"  brought  for  the  use  of  a  party, 
to  whom  a  portion  of  the  proceeds  of  the  property  sold  by  such  trus- 
tee had  been  ordered  to  be  paid,  to  recover  the  same,  it  is  not  com- 
petent for  such  trustee  to  question  the  correctness  of  the  original 
decree  for  a  sale ;  or  the  order  relative  to  the  distribution  of  the 
purchase  money,  liichardson  vs.  the  State,  use  of  Rowlings,  439. 

44.  If  there  was  any  error  in  the  proceedings  in  Chancery,  of  which  the 

trustee  had  any  right  to  complain,  he  might  have  appealed  there- 
from. Ib, 

45.  The  means  by  which  a  wharf  is  erected,  under  the  act  of  1745,  in  the 

city  of  Baltimore,  and  appropriated  to  the  public  use,  form  a  part 
of  the  paper  title,  the  record  evidence,  which  must  be  resorted  to, 
and  examined,  to  trace  the  right  to  such  property;  no  patent  issues, 
but  the  title  must  conform  to  the  acts  of  1745,  ch.  9  ;  1783,  ch.  24  ; 
1796,  ch.  68;  and  the  ordinances  of  that  city.  City  of  Baltimore 
vs.  White,  445. 

46.  The  law  imputes  to  a  purchaser  knowledge  of  all  facts,  appearing  at 

the  time  of  his  purchase  upon  the  paper  or  record  evidence  of  title, 
which  it  was  necessary  for  him  to  inspect  to  ascertain  its  suffi- 
ciency, lb. 

47.  So  the  purchaser  of  a  wharf  in  the  city  of  Baltimore,  erected  under  the 

authority  of  the  acts  of  1745,  1783,  and  1796,  though  bona  fide,  is 
affected  with  notice  of  the  permission  granted  to  build  it,  and  bound 
by  it.  Ib. 

48.  A  receipt  for  a  promissory  note,  on  account  of  merchandize  sold,  is 

evidence  of  payment.     Phelan  and  Bogue  vs.  Crosby,  462. 


INDEX.  531 

EVIDENCE— Continued. 

49.  Where  a  will  authorized  an  executor  to  sell  the  residue  of  the  testa- 

tor's real  and  personal  estate  within  two  years  from  his  decease,  a 
sale  made  within  the  two  years  is  valid,  though  the  conveyance  to 
the  purchaser  was  not  executed  until  after  that  period,  and  parol  evi. 
dence  is  admissible  to  show  the  time  of  sale.  Harlan  vs.  Brown,  475. 

50.  It  is  for  the  court  to  decide  on  the  admissibility  of  evidence,  but  the 

comparative  value,  or  weight  of  testimony,  is  for  the  consideration 
of  the  jury.  Ib. 

51.  The  variation  of  the  compass,  and  the  degree  of  it,  are  questions  of 

fact,  and  upon  evidence  affecting  the  degree  of  variation,  it  is  not 
for  the  court  to  say,  that  the  evidence  offered  by  one  party,  is  better 
than  that  offered  by  the  other,  to  guide  the  jury  in  determining 
whether  any,  or  what  allowance  shall  be  made  for  such  variation.  Ib. 
See  DEED  7. 
PRACTICE. 

EXECUTION. 

1.  The  courts  of  Maryland  have,  for  a  long  period,  sanctioned  the  ab. 

breviated  form  of  a  return,  cepi,  by  the  sheriff,  to  the  writ  of  capias 
ad  satisfaciendum.  State,  use  of  Creecy  vs.  Lawson  et.  al.,  62. 

2.  Such  a  return  is  in  legal  effect,  a  declaration  by  the  sheriff  on  oath, 

that  hy  virtue  of  the  writ,  he  bad  taken  the  body  of  the  defendant, 
and  him  had  ready  to  produce  before  the  court,  at  the  time  and 
place,  as  commanded  by  such  writ.  Ib. 

3.  The  sheriff 's  return  is  prima  facie  evidence  of  the  truth  of  the  facts 

which  it  discloses.    Ib. 

4.  In  this  State,  anterior  to  the  act  of  1811  cA.  161,  sec.  2,  if  the  sheriff 

made  an  arrest  under  a  capias  on  final  process,  and  suffered  the  party 
arrested  to  escape,  he  could  not  again  arrest  the  same  party,  on  the 
same  process,  without  rendering  himself  obnoxious  to  an  action  of 
trespass  for  false  imprisonment.  Ib. 

5.  This  disability  was  removed  by  that  act,  and  the  power  conferred 

on  the  sheriff  to  make  a  second  arrest,  of  the  same  party,  by  virtue 
of  the  same  process.  But  it  did  not  protect  the  sheriff  against  the 
demand  of  the  plaintiff  in  the  process  for  an  escape.  Ib. 

6.  The  act  of  1828,  ch.  50,  sec.  2,  declared  that  if  the  sheriff  produced 

the  body  of  the  defendant  at  the  return  day  of  the  writ,  he  should 
not  be  liable  for  any  intermediate  escape.  This  act  is  not  confined 
to  arrests  on  mesne  process,  but  applies  to  final  process,  attachment 
as  well  as  capias.  Ib. 

7.  Before  the  act  of  1828,  the  sheriff  on  mesne  process  was  authorised 

to  arrest  the  defendant  a  second  time ;  and  the  reason  and  policy  of 
the  law  was  by  it  extended  to  arrests  on  final  process.  Ib. 

8.  Where  a  sheriff  arrests  the  defendant  on  final  process,  and  has  him 

ready  to  be  delivered  up  at  the  return  day  of  the  writ,  on  the  demand 
of  the  plaintiff,  this  in  law  is  a  performance  of  his  duty.  76. 


532  INDEX. 

EXECUTION— Continued. 

9.  The  statutes  of  13  Edw.  1,  ch.  11,  and  1  Rich.  2,  ch.  12,  first  gave 
the  action  of  debt  against  a  gaoler  or  sheriff  for  an  escape.     Ib. 

10.  Where  the  statutable  remedy  is  pursued,  the  sheriff  is  put  by  the  sta- 

tute in  the  same  situation  in  which  the  originol  debtor  stood,  and  the 
jury  cannot  give  a.  less  sum  than  the  creditor  would  have  recovered 
against  the  defendant  in  the  original  suit.  Ib, 

11.  The  action  on  the  sheriff's  bond  to  recover  damages  for  an  escape,  is 

neither  the  common  law  action  on  the  case,  nor  the  remedy  granted 
by  the  statutes  of  Edward  and  Richard.  Ib. 

12.  In  an  action  on  a  sheriff's  bond,  conditioned  for  the  faithful  discharge 

of  his  duties,  the  defendant  is  liable  to  no  more  damages  for  an 
alleged  escape  under  final  process,  than  the  plaintiff  has  actually 
sustained,  to  be  ascertained  by  the  verdict  of  a  jury,  and  hence  the 
sheriff  and  his  sureties  may  show  under  such  a  breach,  in  mitiga- 
tion of  damages,  the  insolvency  of  the  original  defendant  from  the 
time  of  the  issue  of  the  ca.  sa.  until  its  return.  Ib. 

13.  The  act  of  1768,  ch.  10,  sec.  1,  enables  any  plaintiff  in  an  execution 

to  call  upon  the  sheriff  to  produce  the  body  of  the  defendant  before 
the  court,  and  on  his  default,  on  motion,  to  cause  judgment  to  be 
entered  up  for  the  full  amount  of  his  claim,  principal,  interest  and 
costs.  Ib. 

14.  Where  such  a  course  is  adopted,  in  an  action  on  the  sheriff's  bond» 

assigning  as  a  breach  the  non-payment  of  such  a  judgment,  that 
officer  and  his  sureties  would  be  liable  for  the  full  amount  of  the 
judgment.  Ib. 

15.  The  act  of  1768,  ch.  10,  is  not  merged  in  the  act  of  1794,  ch.  54,  but 

is  now  in  full  force  and  frequently  practised  under.     Ib. 

16.  The  failure  of  a  plaintiff  in  a  ca.  sa.,  to  call  on  the  sheriff  at  the  re- 

turn of  the  writ  to  produce  the  body  of  the  defendant  in  court,  does 
not  furnish  any  ground  of  presumption,  in  an  action  against  the 
sheriff  for  a  default,  that  the  defendant  was  discharged  out  of  the 
custody  of  the  sheriff  by  the  consent  of  the  plaintiff.  Ib. 

17.  The  failure  of  a  plaintiff  to  pursue  one  legal  remedy  against  a  sheriff 

in  default,  cannot  be  construed  into  the  abandonment  of  another 
legal  remedy  against  that  officer,  for  the  same  default.  Ib. 

18.  In  an  action  on  a  sheriff's  bond,  for  an   alleged  permissive  escape  by 

the  sheriff  of  a  party  arrested  on  a  ca.  sa.,  which  that  officer  had 
returned  cepi,  the  plaintiff  may  show  that  such  return  is  untrue  in 
point  of  fact,  and  that  the  sheriff  had  not  the  body  of  the  defendant  in 
court,  at  the  return  day  of  the  writ,  ready  to  be  delivered  up  on  the 
demand  of  the  plaintiff.  Hi. 

19.  After  an  arrest  under  a  ca,  sa.,  and  a  permissive  escape  before  the  re. 

turn  day  has  been  proved,  the  burthen  of  showing,  that  the  sheriff  had 
the  body  of  the  defendant  in  court,  according  to  the  exigencies  of 
the  writ  and  his  return  of  cepi  thereto,  is  upon  the  sheriff.  Ib. 

20.  In  an  action  on  the  case  at  common  law  against  tho  sheriff  for  an 

escape,    he  may  offer  evidence  in  mitigation   of  damages.     The 


INDEX.  533 

EXECUTION—  Continued. 

amount  recovered  against  the  party  arrested,  is  not  conclusive  on 
that  question.  Ib, 

21.  There  is  no  precise  form  of  return  prescribed  by  law,  for  returns  of 

levies  made  by  constables  to  writs  of  fieri  facias.  The  term  levied 
in  such  returns  imports  a  seizure,  by  common  usage.  Ib. 

22.  Seizure  under  an  execution  is  a  matter  in  pais,  which  may  be  proved 

by  parol  evidence.     Ib. 

23.  It  is  not  the  constable's  return  which  gives  title  to  a  purchaser  under 

a  fieri  facias,  but  the  seizure  and  sale  under  the  writ.  The  return 
is  evidence,  but  not  the  only  admissible  proof  of  those  facts.  Ib. 

24.  A  statement  of  the  seizure  and  sale  in  the  receipt  for  the  purchase 

money  given  to  the  vendee,  would  be  as  effectual  to  transfer  the 
title  to  the  personal  property  described  in  it,  as  the  most  formal  re. 
turn,  endorsed  on,  or  attached  to  the  writ.  Ib. 

25.  The  seizure,  sale,  and  payment  of  the  purchase  money,  may  also  be 

established  by  oral  testimony,  and  be  equally  valid  for  the  pur- 
chaser as  a  return.  Ib. 

26.  If  the  sheriff  give  time  to  a  purchaser  at  his  sale,  to  pay  the  purchase 

money,  without  the  assent  of  the  creditor,  the  latter  is  not  bound  by 
it.  Hardesty  vs.  Wilson,  481. 

27.  It  does  not  follow,  that  because  a  bidder  is  found  upon  an  offer  for  sale 

of  property,  levied  on  undera.fi.  fa.,  and  he  makes  the  highest  bid, 
that  the  supposed  sale  to  him  discharges  so  much  of  the  debt.  Ib. 

28.  The  bidder  acquires  no  title  to  the  thing  purchased,  but  by  payment  of 

the  purchase  money,  and  if  he  fails  to  do  this  within  a  reasonable 
time,  a  re-sale  may  be  lawfully  made.  Ib. 

29.  The  seizure,  upon  a  fi.  fa.,  is  not  a  satisfaction  of  the  debt.    Ib. 

EXECUTOR  AND  ADMINISTRATOR. 

1.  The  accounts  of  an  administratrix,  making  a  distribution  of  her  in- 

testate's estate  in  money,  no  creditor  nor  fraud  appearing,  will  not, 
after  a  lapse  of  sixteen  years,  be  disturbed  in  equity,  where  she  was 
guardian  to  her  infant  children,  and  paid  them  the  interest  on  the 
Bum  distributed  to  them  during  her  life,  and  her  successor  in  the 
guardianship  received  the  amount  distributed,  from  her  personal 
representative,  though  she  had  taken  to  her  own  account,  certain 
portions  of  her  intestate's  estate  at  their  appraised  value,  which  por- 
tions remained  in  esse  at  the  time  of  her  death.  Ridenour  et.  al. 
vs.  Keller,  134. 

2.  The  court  will  presume  that  distribution  of  an.intestate's  estate,  had, 

after  a  lapse  of  four  years,  been  made,  where  creditors  were  not 
interested;  no  charge  of  fraud  made;  and  it  appearing  that,  all  the 
distributees  had  received  their  proportions  of  the  appraised  value  of 
the  estate  in  money,  and  some  of  them  had  disposed  of  the  same.  Ib. 

3.  Where  an  administratrix  took  a  portion  of  her  intestate's  estate,  to 

her  own  account,  at  the  appraisement,  and  paid  the  distributees 
their  portions  of  the  estate  in  money,  which  they  kept  for  four 
years,  and  (alleged  no  fraud ;  the  distributees,  seeking  to  set  aside 


534  INDEX. 

EXECUTOR  AND  ADMINISTRATOR—  Continued. 

her  settlements,  must  first  do  equity,  and  return  what  they  have 
received,  or  offer  so  to  do.  Ib. 

4.  Where  a  will  authorized  an  executor  to  sell  the  residue  of  the  testa- 

tor's real  and  personal  estate  within  two  years  from  his  decease,  a 
sale  made  within  the  two  years  is  valid,  though  the  conveyance  to  the 
purchaser  was  not  executed  until  after  that  period,  and  parol  evi- 
dence is  admissible  to  show  the  time  of  sale.  Harlan  vs.  Brown,  475. 

5.  The  act  of  1831,  ch.  315,  sec.  10,  does  not  relate  to  sales  of  real  pro- 

perty, made  before  that  statute  went  into  operation.    Ib, 

FRAUD. 

1.  A  sale  of  land  made  by  a  sheriff,  under  execution,  to  his  own  agent, 
is  not  necessarily  void  at  law.  It  is  voidable  for  fraud  in  fact. 
Isaac  and  wife  vs.  Clarke,  1. 

2.  The  jury  alone  is  the  proper  tribunal  to  pronounce  on  the  fact  of  fraud  ; 

and  the  circumstance  that  the  purchaser  is  an  agent  of  the  sheriff 
will  be  regarded  with  much  suspicion.  Ib, 

3.  A  conveyance  obtained  by  a  general  agent  from  his  principal,  will  be 

vacated  for  fraud  in  its  obtention  ;  or,  because  of  the  principal  being 
a  man  of  such  feeble  intellect,  as  to  be  incompetent  to  the  manage- 
ment of  his  own  business ;  or  in  consequence  of  the  terms  being 
so  unjust  and  unequal,  as  therefore  to  be  unconscientious.  Brook 
et  al,  vs.  Berry,  83. 

4.  The  feeble  intellect  of  a  grantor;    the  relation   of   principal  and 

general  agent  between  him  and  the  grantee ;  inadequacy  of  price 
for  land  conveyed  by  such  a  grantor  to  such  a  grantee;  are  all 
circumstances  calculated  to  impeach  a  deed,  as  constructively  frau- 
dulent. //;. 

5.  Upon  a  bill  in  equity,  filed  by  the  holder  of  an  equitable  title  to  vacant 

land  under  the  State,  against  the  patentee  of  the  same  land,  to  va- 
cate the  patent  as  fraudulently  obtained,  the  State  need  not  be  made 
a  party.  Ample  relief  may  be  had  without  the  State,  who  has  no 
interest  in  such  a  case.  Hoye  vs.  Johnston,  291. 

6.  Where  a  party  has  presumed  or  actual  notice  of  a  location  made,  and 

prevails  upon  a  public  surveyor  to  violate  the  instructions  under 
which  he  was  acting,  and  to  misrepresent  to  other  officers  of  the 
State,  who  were  to  judge  of  the  fairness  and  regularity  of  such 
surveyor's  proceedings,  that  in  executing  a  warrant,  he  had  con- 
formed  to  the  rules  of  the  land  office,  and  had  so  enabled  a  party  to 
obtain  a  patent  for  land,  this  is  a  fraud  affecting  such  patent.  Ib. 
See  ESTOPPEL, 

EVIDENCE  39,  40. 

FREIGHT.    See  SHIPS  AND  SHIPPING,  5. 
INSURANCE,  4. 

GOODS  SOLD  AND  DELIVERED. 

See  ASSUMPSIT. 

SHIPS  AND  SHIPPING. 


INDEX.  535 

GUARANTY.     See  BILLS  OK  EXCHANGE,  3. 
GUARDIAN  AND  WARD.     See  ORPHANS  COURT,  1,  2. 
HEIR. 

1.  One  may  be  heir  apparent,  or  heir  presumptive,  but  not  very  heir,  liv- 

ing the  ancestor ;  no  one  is  recognized  as  heir,  until  the  death  of  his 
ancestor.  Mitchell  vs.  Mitchell,  231. 

2.  One  cannot  take,  as  purchaser,  under  the  description  of  heir,  or  heir 

male;  unless,  when  the  estate  is  to  vest,  he  has,  by  the  death  of  his 
ancestor,  become  very  heir.  Ib. 

3.  This  is  the  general  rule,  subject  only  to  this  exception,  that  when  the 

intention  of  the  testator  can  be  made  clearly  to  appear  from  the  will, 
that  he  did  not  mean  the  words,  heir  or  heir  male,  to  be  used  in  their 
technical  sense,  then  the  popular  sense  shall  prevail.  Ib. 

4.  Prima  facie,  the  word  heir  must  be  taken  in  its  technical  sense,  as  a 

word  of  limitation.     Jb. 

HUSBAND  AND  WIFE. 

1.  Where  a  testator  devised  all  the  rest,  residue  and  remainder  of  his  es- 
tate unto  all  the  children  of  his  sister  and  his  late  brother,  that  are 
now  in  existence,  to  be  equally  divided  amongst  them  per  capita, 
share  and  share  alike,  one  of  his  nieces  alive  at  the  date  of  the  will, 
married,  and  died  before  the  testator.  The  sister  and  late  brother 
had  each  five  children  alive  at  the  date  of  the  will.  HELD  :  that  the 
surviving  husband  of  the  deceased  niece,  was  entitled  to  one-tenth 
of  the  testator's  personal  estate  in  the  hands  of  his  executor.  Aid. 
ridge,  ex'r  of  Higdon  vs.  Boswell,  37. 

INJUNCTION. 

1.  Where  an  injunction  issues  to  restrain  proceedings  at  law,  upon  the 

ground  of  credits  not  allowed,  and  the  defendant  admits  the  credits 
in  his  answer,  and  consents  to  allow  them,  the  injunction  should  be 
dissolved  as  to  the  balance  due.  Welch  vs.  Parran,  320. 

2,  A  judgment  creditor  issued  a.fi.fa.,  and  sold  the  land  of  his  debtor.  The 

sheriff,  without  his  consent,  gave  time  to  the  purchaser  to  pay  for  the 
land,  and  the  purchase  money  not  being  all  paid,  the  creditor  ordered 
the  sheriff  to  proceed  to  a  re-sale  of  the  property  levied  on.  The 
debtor  is  not  entitled  to  an  injunction  to  stay  such  re-sale.  Hardes- 
ty  vs.  Wilson,  481. 
See  COURT  OF  CHANCERY,  12. 

INQUISITION.     See  ACTION  UTON  THE  CASE,  1,  2,  3,  4. 
JUDGMENT,  1. 

RAIL  ROAD  CORPORATIONS,  1,  2,  3,  4,  5,  6,  7. 
INSOLVENT  DEBTOR. 

1.  By  the  act  of  1834,  ch.  336,  (passed  21st  March  1835,)  any  surety 
for  the  appearance  of  an  insolvent  petitioner  is  authorised  to  bring 
him  into  court,  or  before  any  judge  thereof,  as  special  bail  may 
bring  their  principal  into  court,  and  when  brought  in,  to  surrender 
and  commit  him,  provided  that  he  be  so  surrendered  before  or  at  the 
first  term  to  which  suit  shall  be  brought  upon  the  bond  for  the  ap- 
pearance of  such  petitioner.  HELD  : 


536  INDEX. 

INSOLVENT  DEBTOR— Continued. 

1st.  That  such  bonds  arc  now  assimilated  to  bail  bonds. 
2nd.  That  the  surety  of  such  insolvent  petitioner  may  surrender 
him  at  or  before  the  first  term  of  suit  brought  on  such  appear- 
ance bond. 

3rd.  That  the  act  applied  to  a  bond  executed  on  the  12th  March 
1835,  the  condition  of  which  was  not  broken  at  the  date  of  the 
passage  of  the  act  of  1834,  ch.  336,  and  modified  the  remedy 
thereon . 

4th.  That  the  surety  is  only  called  upon  to  exert  his  privilege  un. 
der  the  act  of  1834,  after  he  is  sued.  State,  use  of  Holton  vs. 
Burk  et.  al.,  79. 

2.  Where  the  defendant  made  his  note  payable  to  the  plaintiff1,  who 
passed  it  away  for  value,  and  afterwards,  the  plaintiff  paid  it,  he 
may  maintain.an  action  for  money  paid  for  the  defendant,  though 
after  the  note  fell  due,  and  before  the  plaintiff  had  paid  his  endorse- 
ment, the  defendant  was  released  under  the  act  for  the  relief  of  in- 
solvent debtors.  Wharton  et.  al.  vs.  Gallon,  173. 

INSURANCE. 

1.  Upon  a  valued  policy  on  cargo,  tin,  shipped,  or  to  be  shipped,  "at  and 

from  New  York  to  Baltimore,"  the  assured  may  recover  a  partial  loss, 
for  damage  by  sea  water,  caused  by  the  perils  of  the  seas,  though  the 
tin  was  not  properly  dunnaged  and  stowed.  Georgia  Ins.  $  Trust 
Co.  vs.  Dawson,  365 

2.  Underwriters  are  liable  for  a  loss,  the  proximate  cause  of  which,  is  one 

of  the  risks  enumerated  in  their  policy,  though  the  remote  eause  may 
be  traced  to  the  negligence  of  the  master  and  mariners.  Ib. 

3.  The  liability  of  the  ship  owner  to  the  shipper  for  the  negligence  of  the 

master  and  crew,  cannot  avail  the  insurer  as  a  defence.  Upon  pay- 
ment of  the  damage,  the  insurer  may  be  subrogated  to  all  the  rights 
of  the  insured  against  the  person  answerable  for  bad  stowage  and 
dunnage.  Ib. 

4.  Freight  was  insured  on  a  voyage,  at  and  from  Af.  V.  to  C.  C.,  and  at 

and  from  thence  to  B.,  estimated  at  $4000.  It  was  due  at  B.,  on  the 
right  delivery  of  the  cargo  there.  The  vessel  proceeded  to  C.  C., 
and  there  delivered  and  took  in  cargo.  While  her  lading  was  in  pro- 
gress, she  was  forcibly  taken  possession  of  by  a  foreign  ship  of  war, 
and  carried  back  to  Af.  V ;  where,  after  some  detention,  in  March 
1839  she  was  restored  to  her  master,  who  claimed  full  freight  from  the 
charterer,  which  he  resisted ;  and  upon  a  submission  to  arbitration, 
the  vessel  was  allowed  $1200,  and  the  charter  party  cancelled.  C,  C. 
being  now  blockaded,  the  voyage  was  broken  up  and  abandoned.  On 
the  2nd  May  1830,  (forty-seven  days  after  her  capture,)  the  master 
chartered  her  on  another  voyage,  from  A/.  V.  to  H.  In  an  an  action 
against  the  underwriter,  it  was  HELD  : 

1st.  That  as  a  contract  of  insurance  is  one  of  indemnity,  the  doctrine 
of  salvage  for  fi eight,  has  been  introduced  as  a  fair  item  in  the  ad- 
justment of  actual  loss ;  and  that  the  underwriter  was  entitled  to  a 
credit  for  the  sum  paid  (he  master,  on  account  of  freight. 


INDEX.  537 

2nd.  The  doctrine  of  salvage  for  freight  is  confined  to  freight 
earned  on  the  particular  cargo  contemplated  in  the  policy,  or 
other  freight  earned  on  the  same  voyage.  In  such  case,  the 
insurer  is  only  liable  for  the  difference,  because  that  is  the  ex- 
tent of  the  actual  loss  by  that  voyage. 

3rd.  After  time  sufficient  for  the  completion  of  the  original  voy- 
age, had  elapsed,  the  master  of  the  vessel  not  being  able  to 
proceed  on  that,  is  at  liberty  to  enter  upon  another,  and  distinct 
voyage  :  and  the  freight  earned  upon  the  latter  voyage,  will  not 
enure  to  tho  benefit  of  the  underwriter.  Charleston  Ins.  <J- 
Trust  Co.  vs.  Corner,  410. 

4th.  The  time  in  which  a  voyage  should  be  performed,  is  a  ques- 
tion of  fact?  and  not  to  be  assumed,  or  asserted  by  the  court.  Ib. 

5th.  Upon  a  policy  for  account  of  whom  it  may  concern,  in  an 
action  by  A,  where  the  plaintiff  did  not  disclose  by  the  plead- 
ing, any  other  interest  or  damage,  than  that  which  A  had,  or 
sustained,  he  cannot  recover  for  more  than  the  proportion  in 
which  he  was  interested.  Ib. 

INTEREST.     See  TRUST  AND  TKUSTEES,  4,  5. 

JUDGMENT. 

1.  Where  an  inquisition  was  taken,  returned,  and  ratified,  according  to 

law,  upon  proceedings  by  a  rail  road  company,  which  found  that  a 
piece  or  parcel  of  land  was  wanted  by  the  company  for  the  con- 
struction  of  their  road,  and  assessed  the  damages  which  the  owner 
of  the  fee  would  sustain  by  the  use  and  occupation  of  his  land  for 
the  purpose  aforesaid,  at,  &c.,  all  questions  having  relation  to  the 
damage  done  by  the  location  and  construction  of  the  road  are  ter- 
minated and  concluded  by  such  inquest.  Bait.  <£•  Sus.  R.  Road 
Co.  vs.  Cojnpton  et.  al.,  20. 

2.  The  confession  of  a  judgment,  to  be  released  on  payment  of  what 

F  shall  say  is  due,  cannot  be  considered  as  a  reference  under  the 
act  of  1778,  ch.  21.  It  is  a  final  judgment.  State,  use  of  Welsh 
and  wife  vs.  Jones  et.  al.,  49. 

3.  The  various  provisions  of  that  act,  all  contemplate  a  case  still  pend- 

ing in  court,  and  awaiting  tho  return  of  the  award  before  a  judg- 
ment is  to  be  rendered.  Ib. 

4.  The  words  payment  and  due  in  such  a  confession  import  that  a  sum 

of  money,  was  alone  in  the  view  of  the  parties,  and  hence  no  other 
authority  was  given  by  it,  but  to  certify  tho  sum  of  money  on  pay- 
ment of  which  the  judgment  should  be  released.  Ib. 

5.  Under  such   a  confession,  the  party  who  was  to  ascertain  the  sum 

has  no  authority  to  award  or  determine,  that  the  judgment  should 
be  released  on  payment  of,  &c.,  in  negro  property,  at  the  original 
appraisement,  belonging  to  the  estate  of  H.  Ib. 

See  EJECTMENT,  as  to  effect  of  Judgment  in,  as  a  bar  to  a  lease,  9  to  13, 
EVIDENCE,  43,  44,  as  to  incidental  effect  of  Decree. 
LANDLORD  AND  TENANT,  5  to  10. 
SHERIFF,  3,  5,  6,  7. 
68      V.2 


538  INDEX. 

JURORS— JURY. 

1.  Where  it  appeared  that  the  defendant,  in  an  action  of  ejectment,  had 

conveyed  his  lands  to  R,  who  had  died  intestate,  and  that  one  of  the 
jurors  empanneled  to  try  the  cause  was  his  brother  and  heir-at-law, 
the  fact  of  the  conveyance  being  unknown  to  the  plaintiff  when  the 
jury  was  sworn,  the  court  will  permit  the  juror  to  execute  a  deed  of 
re-conveyance  and  release  to  the  defendant,  for  the  purpose  of  re- 
storing his  competency.  Isaac  and  wife's  lessee  vs.  Clarke,  1. 

2.  The  jury  alone  is  the  proper  tribunal  to  pronounce  on  the  fact  of  fraud  ; 

and  the  circumstance  that  the  purchaser  is  an  agent  of  the  sheriff 
will  be  regarded  with  much  suspicion.    Ib, 
See  PRACTICE,  2,  3,  16. 

RAIL  ROAD  CORPORATIONS,  3,  4, 

LAND  OFFICE. 

1.  A  second  patent  for  the  same  land  will  not  be  granted,  according  to 

the  rules  of  the  land  office,  until  the  first  be  vacated.     Hoye  vs. 
Johnston,  291. 

2.  H,  on  the  5th  September  1839,  obtained  a  warrant  of  re-survey,  to 

affect  contiguous  vacancy  in  Allegany  county.  On  the  19th  May, 
he  made  a  survey  ;  on  the  3lst  July,  returned  his  certificate  into  the 
land  office,  and  on  the  18th  February  1841,  paid  the  composition 
money.  On  the  29th  June  1840,  J  obtained  a  special  warrant;  on 
the  llth  July,  executed  his  survey;  on  the  24th,  paid  the  composi- 
tion money,  and  on  the  27th  January  1841,  obtained  a  patent  for 
his  survey.  This  done,  he  successfully  caveated  the  application  of 
H,  for  a  patent  on  his  survey.  It  appeared  that  H  was  seized  of 
the  tract  which  his  warrant  was  issued  to  re-survey ;  had  made  his 
survey  before  J  obtained  his  special  warrant,  and  paid  his  composi- 
tion money  in  time  ;  his  title  relates  to  his  survey  of  the  19th  May 
1840,  and  was  prior  in  point  of  equity  to  J's  title.  Ib. 

3.  Under  the  act  of  1822,  ch.  12S,  sec.  3,  the  composition  money  for 

vacant  land  in  Allegany  county,  may  be  paid  within  twelve  months 
after  the  date  of  the  certificate  of  survey.  Ib. 

4.  By  the  terms  of  a  special  warrant,  a  party  is  forbidden  from  running 

his  lines  within  the  lines  of  any  former  or  more  ancient  survey.     Ib. 

5.  A  party  who  sues  out  of  the  land  office,  a  general  or  special  warrant  of 

survey,  to  take  up  vacant  lands,  has  an  opportunity  to  know,  and  is 
presumed  to  know,  that  before  he  obtained  his  vvarant,  another  war- 
rant for  the  same  land,  if  the  fact  be  so,  had  actually  been  located.  Ib. 

6.  Where  a  party  has  presumed  or  actual  notice  of  a  location  made,  and 

prevails  upon  a  public  surveyor  to  violate  the  instructions  under 
which  he  was  acting,  and  to  misrepresent  to  other  officers  of  the 
State,  who  were  to  judge  of  the  fairness  and  regularity  of  such 
surveyor's  proceedings,  that  in  executing  a  warrant,  he  had  con- 
formed to  the  rules  of  the  land  office,  and  had  so  enabled  a  party  to 
obtain  a  patent  for  land,  this  is  a  fraud  affecting  such  patent.  Ib. 
See  RIPARIAN  PROPRIETOR. 


INDEX.  539 

LANDLORD  AND  TENANT. 

1.  The  general  rule  is,  that  a  party  consenting  to  hold  as  lessee,  can- 

not afterwards  deny  the  title  of  his  acknowledged  landlord.  Isaac 
and  wife's  lessee  vs.  Clarke,  1. 

2.  There  are  exceptions  to  this  rule ;  but  they  do  not  rest  on  the  fact, 

that  the  acknowledgment  was  made  by  the  tenant  subsequent  to 
his  coming  into  possession,  or  that  he  originally  had  possession  un- 
der another  title.  Ib. 

3.  The  circumstances  of  deception,  mistake,  or  other  grounds,  which 

exempt  a  tenant  from  the  influence  of  the  rule,  apply  as  well  to  the 
case  of  admissions  after  his  possession  commenced,  as  before.  Ib. 

4.  Where  a  party  is  in  possession,  and  enters  into  an  agreement  with 

another  claiming  the  land,  to  become  his  tenant,  ho  is  within  the 
general  rule,  which  forbids  the  tenant  from  questioning  the  land, 
lord's  title.  A  relation  thus  created  does  not,  per  se,  constitute  one 
of  the  exceptions  to  that  rule.  16. 

5.  The  statute  4  Geo.  2,  ch.  28,  requires,  that  to  render  a  judgment  by 

default,  conclusive  upon  the  rights  of  a  tenant,  and  bar  his  future 
recovery  of  the  demised  premises,  it  shall  be  made  appear  to  the  court 
where  the  suit  is  depending,  by  affidavit,  that  half  a  year's  rent  was 
due  before  the  declaration  was  served,  and  that  no  sufficient  distress 
was  to  be  found  upon  the  demised  premises,  countervailing  the  ar- 
rears of  rent  then  due,  and  that  the  lessor  in  ejectment  had  power 
to  re-enter;  in  every  such  case  the  lessor  shall  recover  judgment 
and  execution,  in  the  same  manner,  as  if  the  rent  in  arrear  had  been 
legally  demanded,  Walter  et  al.  vs.  Alexander  and  wife,  204. 

6.  To  make  a  judgment  by  default,  a  bar  to  a  lease  under  the  statute  of  4 

Geo  2,  the  record  must  disclose  such  facts  and  circumstances,  as 
will  justify  the  court  in  believing,  or  assuming,  that  in  rendering  its 
judgment,  the  court  below  designed  to  exercise  the  authority  confer- 
red on  it  by  that  statute.  Ib. 

7.  When  all  the  proceedings  in  ejectment,  until  long  after  the  judgment 

by  default,  show  it  to  have  been  an  ordinary  case  of  ejectment,  hav- 
ing no  connexion  with  the  statute,  there  is  nothing  to  warrant  the 
assumption,  that  the  judgment  was  rendered  under  the  authority  of 
the  statute.  Ib. 

8.  Where  the  affidavit  required  by  the  statute  was  filed  in  vacation,  at  a 

different  term  from  that  of  the  judgment,  and  more  than  ten  months 
after  its  rendition ;  and  which,  according  to  the  proof,  was  never 
shown  to  the  county  court,  this  court  will  not  assume  the  judgment 
was  given  on  the  affidavit,  according  to  the  obvious  import  and  design 
of  the  statute.  Ib. 

9.  The  affidavit  in  such  cases,  should  be  filed  before  the  judgment  by 

default  is  entered,  or  some  time  during  the  term  at  which  it  was 
rendered ;  so  that  before  the  judgment  became  absolute,  the  court 
may  have  had  an  opportunity  of  inspecting  and  adopting  the  affi- 
davit, as  the  basis  of  its  judgment,  Ib. 


540  INDEX. 

LANDLORD  AND  TENANT—  Continued. 

10.  The  coart  will  not  presume,  that  an  affidavit  was  filed,  pursuant  to 

the  statute,  after  a  lapse  of  seventeen  years,  where  it  clearly  appears, 
that  in  fact  it  was  not  so  filed ;  yet  if  filed  in  time,  the  court  will 
be  presumed  to  have  discharged  their  duty  in  relation  to  it.  75. 

11.  The  tenant  in  fee  of  a  lot  binding  on  the  basin  of  the  city  of  Baltimore, 

leased  the  same  for  a  term  of  years,  reserving  a  right  to  distrain  and 
re-enter;  and  granted  his  lessee  "the  exclusive  right  of  extending, 
not  exceeding,  &c.,  into  the  water,  any  and  every  part  of  said  lot 
which  fronted  the  basin,  provided  he  could  obtain  permission  for  that 
purpose,  from  the  Mayor  $-c.  of  Baltimore,  or  the  legislature  of  the 
State,  The  reversion  of  this  lot  was  sold  to  O,  who  recovered  the 
leased  premises  by  ejectment  for  non-payment  of  rent,  and  applied  to 
the  corporation  of  5  for  liberty  to  extend  the  lot  into  the  basin,  ac. 
cording  to  the  original  lease,  which  was  granted,  and  the  extension 
made.  HELD  : 

1st.  That  the  right  to  make  the  improvement,  and  it,  when  made, 

did  not  remain  in  the  heirs  of  the  first  tenant  in  fee,  who  leased  it. 

2nd.  By  the  sale  of  the  reversion  to  O,  all  the  right  of  the  original 

tenant  in  fee,  both  in  the  lot,  and  the  permission  to  extend  the 

same,  as  granted  by  the  lease,  vested  in  O. 

3rd.  By  the  forfeiture  of  the  lease,  consequent  upon  the  recovery  in 

ejectment,  no  right  reverted  to  the  first  tenant. 
4th.  That  if  the  lessee  had  made  the  improvement  under  the  per- 
mission  granted  by  his  lease,  the  lessors  and  his  assigns  could 
have  distrained  or  re-entered  upon  it,  as  upon  the  original  lot. 
City  of  Baltimore  vs.  White,  444. 
LEASE.     See  LANDLORD  AND  TENANT. 

LEGACY— LEGATEE. 

1.  Where  an  estate,  charged  with  the  payment  of  a  legacy,  descends  to  the 
legatee,  the  lien  becomes  extinct,  by  the  union  of  the  title,  and  the 
charge,  in  the  same  person.     Mitchell  »«.  Mitchell,  231. 
See  WILL  AND  TESTAMENT,  1 . 
LESSOR— LESSEE— LEASE. 

1.  The  statute  4  Geo.  2,  ck.  28,  requires,  that  to  render  a  judgment  by 
default,  conclusive  upon  the  rights  of  a  tenant,  and  bar  his  future 
recovery  of  the  demised  premises,  it  shall  be  made  appear  to  the 
court  where  the  suit  is  depending,  by  affidavit,  that  half  a  year's  rent 
was  due  before  the  declaration  was  served,  and  that  no  sufficient 
distress  was  to  be  found  upon  the  demised  premises,  countervailing 
the  arrears  of  rent  then  due,  and  that  the  lessor  in  ejectment,  had 
power  to  re-enter;  in  every  such  case  the  lessor  shall  recover  judg- 
ment and  execution,  in  the  same  manner,  as  if  the  rent  in  arrear  had 
been  legally  demanded.  Walter  et  al.  vs.  Alexander  and  wife,  204. 
LICENSE. 

1.  Where  one  party  authorises  another  to  divert  the  channel  of  a  stream, 
flowing  through  the  lands  of  both,  by  means  of  a  license  which  is 


INDEX.  541 

LICENSE— Continued. 

countormandable  in  its  nature,  and  the  authority  is  exorcised  as 
granted,  the  party  who  has  the  power  of  countermand,  can  only  be 
restored  to  his  rights,  by  doing  justice  to  the  other,  and  tendering 
him  the  expense  which  he  has  incurred  under  the  license.  Addison 
vs.  Hack,22\. 

2.  Where  the  plaintiff  verbally  agreed  to  abandon  the  use  of  a  stream  of 

water  in  the  manner  in  which  it  had  been  accustomed  to  flow  on 
his  land,  and  the  abandonment  was  consummated  by  the  execution 
of  his  license,  from  that  moment,  his  right  to  the  use  of  the  water, 
as  it  former!}'  flowed  in  its  natural  channel,  became  extinct;  and  it 
was  no  longer  appurtenant  to  his  land.  Ib. 

3.  Such  license  conveys  no  estate,  interest,  or  use  in  the  land;  is  not 

within  our  registry  acts ;  nor  calculated  to  mislead  purchasers.     76. 
LIMITATION  OF  ACTIONS. 

1.  Upon  the  single  bill  of  B,  dated  20th  July  1827,  promising  to  pay 

the  "heirs,  administrators  or  assigns,  of  the  estate  of  D,  deceased," 
an  action  was  commenced  by  the  administrators  of  D,  on  the  8th 
February  1839.  The  writ  was  regularly  renewed  from  term  to  term, 
until  November  term,  1839,  when  it  was  suggested,  that  the  said  let- 
ters of  administration  had  been  revoked  and  granted  anew  to  S,  who 
sued  out  another  writ,  in  his  own  name,  to  the  next  succeeding  term  ; 
which  being  returned  non  est,  and  regularly  renewed  for  several  terms, 
he  then  procured  an  attachment.  This  was  levied  and  returned.  The 
defendant,  now,  gave  special  bail  and  appeared,  and  the  last  adminis- 
trator declared  against  him  on  the  single  bill,  specially  stating  the 
revocation  of  the  first  letters.  HELD  :  That  it  was  uncertain,  upon 
the  face  of  these  instruments,  to  whom  they  were  to  be  delivered,  or 
in  whose  name  a  suit  must  be  brought ;  that  no  action  could  be  brought 
on  them ;  and,  that  limitations  were  a  bar  to  the  action.  Bennington 
vs.  Dinsmore,  348. 

2.  Where  there  are  more  writs  than  one,  it  must  appear,  that  they  are 

regular  continuances  of  each  other,  to  except  the  case  from  the  act 
of  limitations.  Ib. 

3.  Writs  issued  in  the  name  of  S,  administrator  of  D,  cannot  be  regu- 

lar continuances  of  writs  issued  by  G,  administrator  of  D ;  though 
the  authority  of  the  latter  had  been  revoked.  Ib. 

MANDAMUS— 

To  enforce  payment  of  Taxes.     See  TAXES. 

MATERIAL  MEN.     See  SHIPS  AND  SHIPPING. 

MAXIMS. 

1.  The  maxim,   "volenti  non  fit  injuria,"   illustrated.       Addison  vs. 

Hack.  221. 

2.  One  may  be  heir  apparent,  or  heir  presumptive,  but  not  very  heir,  liv- 

ing the  ancestor;  no  one  is  recognized  as  heir,  until  the  death  of  his 
ancestor.  Mitchell  vs.  Mitchell,  231. 

3.  Every  contingent  remainder  must  vest  eo  instanti,  that  the  particular 

estate  determines.     Ib. 


542  INDEX. 

MERGER. 

1.  Where  an  estate,  charged  with  the  payment  of  a  legacy,  descends  to 

the  legatee,  the  lien  becomes  extinct  by  the  union  of  the  title  and 
the  charge,  in  the  same  person.  Mitchell  vs,  Mitchell,  231. 

2.  Where  parties  submit  matters  in  controversy,  for  the  purpose  of  a  final 

determination,  and  the  arbitrators  make  an  award,  the  original  con- 
tract or  cause  of  action  is  merged  by  the  submission  and  award ;  and 
there  is  no  distinction,  in  this  respect,  between  submissions  by  parol, 
and  by  bond.  Randall  vs.  Glennt  430. 

3.  There  is  a  distinction  between  a  submission  by  parties  to  the  judgment 

of  two  or  more  individuals  who  are  to  decide  the  controversy,  and  a 
reference  of  a  collateral,  incidental  matter  of  appraisement,  or  calcu- 
lation, or  the  submission  of  a  particular  question,  forming  only  a  link, 
in  the  chain  of  evidence,  not  calculated  to  put  an  end  to  contro-- 
versy.  Ib. 

MORE  OR  LESS— 

For  effect  of  words  :     See  CONTRACT,  1. 

MORTGAGE— MORTGAGOR— MORTGAGEE . 
See  DEBT,  1. 
DOWER. 
ESTOPPEL,  1,  2,  3,  4. 

ORPHANS  COURT. 

1.  This  court,  in  reviewing  the  judgments  of  the  county  courts,  cannot 

exercise  the  powers  of  a  court  of  probat  as  to  last  wills  and  testa- 
ments of  personal  property.  Hannon  et  al.  ts.  the  State,  use  of 
Robey,  42. 

2.  It  is  the  duty  of  the  Orphans  court  in  appointing  a  guardian,  to  con- 

sult the  interest,  rather  than  the  wishes  of  an  infant.  Compton  vs. 
Compton,  241. 

3.  An  appeal  will  not  lie  from  an  order  of  the  Orphans  court,  appointing 

a  guardian.     Ib, 

4.  The  act  of  1831,  ch.  315,  sec.  10,  does  not  relate  to  sales  of  real  pro- 

perty, made  before  that  statute  went  into  operation.     Harlan   vs< 
Brown,  475. 
See  EVIDENCE,  5,  6. 

WILL  AND  TESTAMENT. 

PARTIES  IN  EQUITY. 

See.  PRACTICE  IN  CHANCERY,  6. 
PATENT.    See  LAND  OFFICE. 

PERSONAL  ESTATE. 

See,  TAXES,  as  to  Rail  Road  Shares,  being  in  certain  cases  declared. 

PLEAS  AND  PLEADING. 

1.  Where  the  defendant  pleaded  general  performance,  and  after  the 
plaintiff  replied  assigning  a  breach  of  the  condition  of  a  bond,  the 
defendant  rejoined  generally,  on  which  the  issue  was  made  up,  This 
rejoinder  under  such  circumstances  can  only  be  considered  a  general 
traverse  of  the  plaintiff's  replication.  It  only  puts  in  issue  the  facts 


INDEX.  543 

PLEAS  AND  PLEADING— Continued. 

stated  in  the  replication.  Hannon  et  al.  vs.  the  Stale,  use  of  Ro- 
bey,  42. 

2.  Where  the  plaintiff  assigned  breaches  in  a   special  replication,   it 

is  the  duty  of  the  defendant  to  rejoin  specially,  and  a  general  rejoin- 
der of  general  performance  to  such  a  plea,  to  give  it  any  operation 
at  all,  can  only  be  considered  as  a  general  traverse  of  the  facts  of  the 
replication.  75. 

3.  The  action  on  the  sheriff's  bond  to  recover  damages  for  an  escape,  is 

neither  the  common  law  action  on  the  case,  nor  the  remedy  granted 
by  the  statutes  of  Edward  and  Richard.  State,  use  of  Creecy  vs. 
Lawson  et.  al.,  62. 

4.  There  are  many  instances  in  which,  on  the  assignment  or  suggestion  of 

breaches  under  the  Stat.  8  and  9  Will.  3,  the  measure  of  damages 
is  fixed  and  certain,  but  they  arise  from  the  peculiar  circumstances 
of  each  case,  and  not  from  any  general  rule.  Z6, 

5.  An  action  of  debt  cannot  be  maintained  upon  a  deed  of  mortgage, 

reciting  that  the  grantee  was  indebted  to  the  grantor  in  a  sum  cer- 
tain, and  that  the  deed  was  executed  for  the  better  securing  the  pay- 
ment thereof,  with  a  proviso,  after  the  habendum  of  the  instrument, 
that  upon  payment  of  the  money  the  deed  should  be  void,  there 
being  no  covenant  in  the  deed  to  pay  the  debt.  Barrell  vs.  Glover 
et.  al.,  171. 

6.  Upon  a  policy  for  account  of  whom  it  may  concern,  in  an  action  by  A, 

where  the  plaintiff  did  not  disclose  by  the  pleading,  any  other  inte- 
rest or  damage,  than  that  which  A  had,  or  sustained,  he  cannot  re- 
cover for  more  than  the  proportion  in  which  he  was  interested. 
Charleston  Ins.  <$•  Trust  Co.  vs.  Corner,  410, 

7.  Where  the  plaintiff's  demand  is  set  forth  in  a  general  count,  as  for  mo- 

ney lent,  &c.,  the  defendant  may,  at  any  time,  before  he  has  pleaded 
to  the  merits,  call  on  the  plaintiff  to  exhibit  the  particulars  of  his 
claim.  Randall  vs.  Glenn,  430. 

6.  After  pleading  to  the  merits,  it  seems  to  be  too  late  to  object  to  the 
want  of  a  statement  of  the  particulars  of  the  plaintiff's  demand,  or 
that  the  same  is  defective.  Ib. 

9.  At  the  term  to  which  an  action  was  brought,  the  defendant  demand- 
ed a  bill  of  particulars,  which  the  plaintiff  furnished ;  several  terms 
afterwards,  the  defendant  pleaded  the  general  issue ;  at  the  next 
term,  when  the  cause  was  called  for  trial,  the  defendant  excepted 
to  the  sufficiency  of  the  statement.  This  objection  came  too  late.  7fi. 
PLEAS  AND  PLEADING  IN  EQUITY. 

1.  Where  a  complainant  alleged  the  existence  of  a  contract  with  the 
defendant,  accompanied  with  collateral  circumstances,  and  called 
upon  him  not  to  state  what  the  contract  was,  but  to  admit  or 
deny  the  existence  of  the  agreement  and  circumstances  set  forth  ; 
and  the  defendant,  in  his  answer,  averred  another  agreement  be- 
tween him  and  the  complainant,  and  denied  the  collateral  circum- 
stances :  the  statement  of  the  agreement  by  the  defendant  in  such 


544  INDEX. 

PLEAS  AND  PLEADING  IN  EQUITY— Continued. 

case  is  not  simply  responsive  to  the  contract  he  was  cc-lled  on  to 
admit  or  deny.  It  is  not  such  a  denial  as  requires  two  witnesses,  or 
one  with  concurring  circumstances  to  disprove  it;  nor  in  this  case 
was  it  necessary  to  disprove  the  denial  of  the  collateral  circum- 
stances by  the  same  amount  of  proof.  Jones  vs.  Belt,  106. 
2.  A  decree  which  refers  to  the  bill  for  a  description  of  the  lands  on 
which  it  is  intended  to  operate,  is  not  vague  and  uncertain  in  that 
respect.  Ib. 

POWER. 

See  EXECUTOR  AND  ADMINISTRATOR,  4,  for  execution  of,  within  time. 

PRACTICE. 

1.  Where  it  appeared  that  the  defendant,  in  an  action  of  ejectment,  had 

conveyed  his  lands  to  R,  who  had  died  intestate,  and  that  one  of  the 
jurors  ompanneled  to  try  the  cause  was  his  brother  and  heir-at-law, 
the  fact  of  the  conveyance  being  unknown  to  the  plaintiff  when  the 
jury  was  sworn,  the  court  will  permit  the  juror  to  execute  a  deed  of 
re-conveyance  and  release  to  the  defendant,  for  the  purpose  of  re. 
storing  his  competency,  Isaac  and  wife's  lessee  vs.  Clarke,  1. 

2.  An   inquisition  to  condemn  land  for  the  use  of  the  B.  arid  S.  Rail 

Road  Company,  in  Baltimore  county,  out  of  the  limits  of  the  city 
of  Baltimore,  ought  not  to  be  held  upon  the  warrant  of  a  justice  of 
the  peace  appointed  for  said  city.  Per  Baltimore  county  court. 
Baltimore  $•  Susq.  R.  R.  Co.  vs.  Compton,  et  al.,  20. 

3.  Under  the  act  of  1827,  ch.  72,  resident  jurors  in  the  city  of  Balti- 

more may  be  summoned  to  act  in  any  part  of  Baltimore  county.    Ib. 

4.  The  courts  of  Maryland  have,  for  a  long  period,  sanctioned  the  ab- 

breviated form  of  a  return,  cepi,  by  the  sheriff,  to  the  writ  of  capias 
ad  satisfaciendum.  State,  use  of  Creecy  vs.  Lawson  et  al.,  62. 

5.  Such  a  return  is  in  legal  effect,  a  declaration  by  the  sheriff  on  oath, 

that  hy  virtue  of  the  writ,  he  had  taken  the  body  of  the  defendant, 
and  him  had  ready  to  produce  before  the  court,  at  the  time  and 
place,  as  commanded  by  such  writ.  Ib. 

6.  On  a  judgment  by  default  in  a  suit  on  a  sheriff 's  bond  for  an  escape, 

the  court  would  not  assume  the  power  of  assessing  damages  and 
giving  final  judgment.  Ib. 

7.  The  act  of  1768,  ch.  10,  is  not  merged  in  the  act  of  1794,  ch.  54,  but 

is  now  in  full  force  and  frequently  practised  under.     Ib. 

8.  The  failure  of  a  plaintiff  in  a  ca.  sa.,  to  call  on  the  sheriff  at  the  re- 

turn of  the  writ  to  produce  the  body  of  the  defendant  in  court,  does 
not  furnish  any  ground  of  presumption,  in  an  action  against  the 
sheriff  for  a  default,  that  the  defend'int  was  discharged  out  of  the 
custody  of  the  sheriff  by  the  consent  of  the  plaintiff.  Ib. 

9.  In  this  State,  anterior  to  the  act  of  1811  ch.  161,  sec.  2,  if  the  sheriff 

made  an  arrest  under  a  capias  on  final  process,  and  suffered  the  party 
arrested  to  escape,  he  could  not  again  arrest  the  same  party,  on  the 
same  process,  without  rendering  himself  obnoxious  to  an  action  of 
trespass  for  false  imprisonment.  Ib. 


INDEX.  545 

PR  ACTICE-  Continued. 

10.  This  disability  was  removed  by  that  act,  and  the  power  conferred 

on  the  sheriff  to  make  a  second  arrest,  of  the  same  party,  by  virtue 
of  the  same  process.  But  it  did  not  protect  the  sheriff  against  the 
demand  of  the  plaintiff  in  the  process  for  an  escape.  Ib. 

11.  The  act  of  1828,  ch.  50,  sec.  2,  declared,  that  if  the  sheriff  produced 

the  body  of  the  defendant  at  the  return  day  of  the  writ,  he  should 
not  be  liable  for  any  intermediate  Escape.  This  act  is  not  confined 
to  arrests  on  mesne  process,  but  applies  to  final  process,  attachment 
as  well  as  capias.  Ib. 

12.  Before  the  act  of  1828,  the  sheriff  on  mesne  process  was  authorised 

to  arrest  the  defendant  a  second  time  ;  and  the  reason  and  policy  of 
the  law  was  by  it  extended  to  arrests  on  final  process.  Ib. 

13.  Where  a  sheriff  arrests  the  defendant  on  final  process,  and  has  him 

ready  to  be  delivered  up  at  the  return  day  of  the  writ,  on  the  demand 
of  the  plaintiff,  this  in  law  is  a  performance  of  his  duty.  Ib. 

14.  By  act  of  1834,  ch,  336,  the  surety  of  an  insolvent  petitioner  may 

surrender  him  at  or  before  the  first  term  of  suit  brought  on  such 
appearance  bond.  State,  use  of  Holton  vs.  Burk  et.  al.,  79. 

15.  That  the  surety  is  only  called  upon  to  exert  his  privilege  under  the  act 

of  1834,  after  he  is  sued.     Ib. 

16.  Although  upon  the  whole  testimony  in  a  cause,  on  both  sides  taken 

together,  the  conclusions  of  a  judge  might  be,  if  acting  as  a  juror, 
that  the  verdict  should  be  for  the  defendant,  yet  if  there  is  evidence 
legally  sufficient  to  warrant  the  jury  in  finding  for  the  plaintiff, 
when  left  unaffected  by  the  defendant's  pnoof,  the  court  will  not  say 
to  the  jury  upon  the  motion  of  the  defendant,  that  there  is  no  evi- 
dence in  the  cause,  or  that  the  plaintiff's  cause  is  not  proven.  Tif- 
fany vs.  Savage,  129. 

17.  When,  before  a  court  can  grant  a  prayer  it  must  assume  the  non-exis. 

tence  of  all  the  testimony  not  enumerated  in  it,  and  thus  exclude  ma- 
terial evidence  from  the  consideration  of  the  jury,  or  assume  facts  of 
which  no  proof  had  been  offered,  to  grant  it  would  be  to  transcend 
its  jurisdiction,  and  exert  a  power  which  belonged  exclusively  to  the 
jury,  or  which  could  not  be  exercised  in  the  particular  case,  either 
by  the  court,  or  jury.  Byer  vs.  Etnyre  and  Besore,  150- 

18.  The  construction  of  a  statute  in  every  part  of  the  State  must  be  the 

same  ;  a  practice  in  a  particular  part  of  the  State,  inconsistent  with 
its  letter  and  spirit,  cannot  repeal  it.  Walter  et  al.  vs.  Alexander 
and  wife,  204. 

19*  As  to  the  practice  of  filing  affidavits  in  actions  of  ejectment,  to  va- 
cate leases,  under  the  statute  4  Geo.  2,  ch,  28,  see  Ejectment  9  to 
13. — Landlord  and  Tenant  5  to  10. 

20.  In  an  action  relating  to  lands,  if  the  defendant  does  not  take  defence 

on  warrant,  the  plaintiff  is  under  no  obligation  to  ask  for  a  warrant 
to  locate  his  land,  or  any  of  the  matters  in  controversy  between  the 
parties.  Addison  vs.  Hack,  221. 

21.  In  such  case,  without  plots,  ho  may  read  his  titlo  papers  in  evidence  ; 

69     v.2 


546  INDEX. 

PRACTICE— Continued. 

prove  his  possessions  under  them ;  and  show  by  oral,  and  other 
testimony,  the  injury  he  complains  of,  and  for  which  he  seeks  in- 
demnity. Ib. 

22.  The  rule  of  Baltimore  county  court,  which  requires  that  the  whole 

testimony  intended  to  be  produced  by  plaintiff  and  defendant  shall 
be  offered  before  any  question  of  law  is  raised,  except  objections  to 
the  competency  of  testimony,  is  such  a  rule  as  that  court  has  power 
to  make.  Gist  and  Scott  vs.  Drakely,  330. 

23.  When  a  party  fails  to  offer  any  evidence,  at  the  time  he  ought  to  have 

offered  it,  under  the  foregoing  rule,  this  court  will  not  assume  that 
it  was  then  out  of  his  reach,  or  was  afterwards  discovered.  It. 

24.  The  observance  of  such  rule  may  be  dispensed  with,  by  consent.    Ib. 

25.  Where  there  are  more  writs  than  one,  it  must  appear,  that  they  are 

regular  continuances  of  each  other,  to  except  the  case  from  the  act 
of  limitations.  Bennington  vs.  Dinsmore,  348. 

26.  Writs  issued  in  the  name  of  S,  administrator  of  £>,  cannot  be  regu- 

lar continuances  of  writs  issued  by  G,  administrator  of  D ;  though 
the  authority  of  the  latter  had  been  revoked.  Ib. 

27.  For  repairs  made  to  a  carriage  for  the  benefit  of  the  defendants,  and 

with  their  knowledge  and  approbation,  they  would  be  liable;  but 
whether  so  made,  is  a  question  for  the  jury.  Rogers  $•  Marfield  vs. 
Severson,  385. 

28.  In  what  character  a  person  who  takes  a  carriage  to  a  mechanic  to  be 

repaired,  is  in  possession,  whether  as  driver,  servant,  agent,  or  owner, 
is  a  fact  for  the  jury.  Ib. 

29.  The  jury  are  exclusive  judges  of  the  weight  of  parol  evidence  offered 

to  them,  tending  to  prove  an  agency,     Henderson  vs.  Mayhew,  393- 

30.  The  time  in  which  a  voyage  should  be  performed,  is  a  question  of  fact, 

and  not  to  be  assumed,  or  asserted  by  the  court.  Charleston  Ins.  <J- 
Trust  Co.  vs.  Corner,  411. 

31.  Where  the  plaintiff  offered  in  evidence  verbal  and  written  testimony, 

to  maintain  his  issue  in  an  action  of  assumpsit,  part  of  which,  in 
writing,  was  admitted  by  the  defendant,  as  evidence  of  the  facts 
recited  in  it ;  part,  as  if  regularly  proved  under  a  commission — ano. 
ther  portion  being  a  deposition  of  a  witness,  no  part  of  the  plain- 
tiff's proof  being  contradicted,  ho  cannot  assume  that  the  jury  will 
find  the  facts  accordingly ;  and  pray  the  court  to  instruct  them, 
upon  that  assumption.  ///. 

32.  The  sufficiency  of  evidence  to  satisfy  a  jury,  or  the  circumstance, 

that  it  is  all  on  one  side,  does  not  authorize  the  court  to  direct  them, 
that  it  proves  a  fact  in  controversy.  Ib. 

33.  The  jury  have  the  power  to  refuse  their  credit  to  parol  testimony,  and 

no  action  of  the  court  should  control  the  exercise  of  their  admitted 
right,  to  weigh  its  credibility.  Ib. 

34.  Where  the  plaintiff's  demand  is  set  forth  in  a  general  count,  as  for  mo- 

ney  lent,  &c.,  the  defendant  may,  at  any  time,  before  he  has  pleaded 
to  the  merits,  call  on  the  plaintiff  to  exhibit  the  particulars  of  his 
claim.  Randall  vs.  Glenn,  430. 


INDEX.  547 

PRACTICE— Continual. 

35.  After  pleading  to  the  merits,  it  seems  to  be  too  late  to  object  to  the 

want  of  a  statement  of  the  particulars  of  tho  plaintiff's  demand,  or 
that  the  same  is  defective.  Ib, 

36.  At  the  term  to  which  an  action  was  brought,  the  defendant  demand- 

ed a  bill  of  particulars,  which  the  plaintiff  furnished;  several  terms 
afterwards,  the  defendant  pleaded  the  general  issue ;  at  the  next 
term,  when  the  cause  was  called  for  trial,  the  defendant  excepted 
to  the  sufficiency  of  the  statement.  This  objection  came  too  late.  Ib. 

37.  The  motion,  to  direct  an  amendment  of  a  bill  of  particulars,  filed  in 

duo  time,  made  after  plea,  pleaded  to  the  merits,  at  the  trial  term,  is 
addressed  to  the  sound  discretion  of  the  court ;  and  therefore  is  one 
from  which  an  appeal  does  not  lie,  any  more  than  it  will  on  a  refu- 
sal to  grant  a  new  trial.  Ib. 

38.  It  is  for  the  court  to  decide  on  the  admissibility  of  evidence,  but  the 

comparative  value,  or  weight  of  testimony,  is  for  the  consideration 
of  the  jury.     Harlan  vs.  Brown,  475. 
See  JURORS — JURY,  2. 

PRACTICE  IN  CHANCERY. 

1.  Exceptions  to  proof  taken  under  a  commission,  will  not  avail  the 

party  making  them,  where  the  only  tendency  of  the  proof  excepted 
to,  is  to  establish  facts  admitted  in  the  defendant's  answer,  or  satis, 
factorily  proved  by  other  testimony  which  stands  exempt  from  all 
objection.  Brooke  et  al,  vs.  Berry,  83. 

2.  A  general  exception  to  all  the  testimony  taken  under  an  ex  parte 

commission,  on  the  ground  that  it  was  vacated  and  set  aside  by  an 
order  of  court  rescinding  an  interlocutory  decree,  to  let  in  a  defen- 
dant's answer,  cannot  be  sustained,  when  the  proof  was  taken  prior 
to  tho  rescision  of  such  decree.  Ib. 

3.  The  act  of  1820,  ch.  161,  sec.  3,  provides,  that  the  filing  of  an  an- 

swer, after  an  interlocutory  decree  is  rescinded  under  that  act,  shall 
in  no  case  affect  the  validity  of  any  commission  previously  issued 
to  take  testimony,  or  the  proceedings  under  it,  or  of  any  testimony 
previously  taken  and  returned  under  any  such  commission  :  the  effi- 
cacy of  the  proof  is  the  same,  whether  previously  or  subsequently 
returned  into  court.  Ib. 

4.  Notice  of  the  execution  of  an  ex-parte  commission,  under  the  act  of 

1820,  need  not  be  given  to  the  defendant  He  has  no  power,  either 
to  offer  proof  under  such  commission,  or  to  cross-examine  the  com- 
plainant's witnesses.  Ib. 

5.  Tho  court  will   fix  a  time,  in   their  decree,  within  which  a  devisee 

bound  to  elect,  must  make  an  election ;  and  if  tho  election  is  not 
to  take  the  estate  in  fact  used  and  enjoyed  under  the  will,  the 
court  will  further  decree  an  account  of  rents  and  profits  of  the  part 
so  held  and  used.  McElfresh  adrn'r  vs.  Scnley  and  Barr,  181. 

6.  Upon  a  bill  in  equity,  filed  by  the  holder  of  an  equitable  title  to  vacant 

land  under  the  State,  against  the  patentee  of  the  same  land,  to  va- 
cate the  patent  as  fraudulently  obtained,  the  State  need  not  be  made 


548  INDEX. 

PRACTICE  IN  CHANCERY— Continued. 

a  party.  Ample  relief  may  be  had  without  the  State,  who  lias  no 
interest  in  such  a  case.  Hoye  vs.  Johnston,  291. 

7.  An  equitable  title  to  vacant  lands,  will,  in  equity,  prevail  against  a  legal 

title,  when  the  party  possessed  of  the  legal  title,  has  procured  it  by 
means  of  fraudulent  representations  to  the  officers  of  the  land  office. 
Upon  a  bill,  in  such  case,  the  patent  will  be  vacated  in  favor  of  the 
equitable  title,  or  the  patentee  decreed  to  convey  the  land  to  the  in- 
jured party.  Ib. 

8.  Where  on  injunction  issues  to  restrain  proceedings  at  law,  upon  the 

ground  of  credits  not  allowed,  and  the  defendant  admits  the  credits 
in  his  answer,  and  consents  to  allow  them,  the  injunction  should  be 
dissolved  as  to  the  balance  due.  Welch  vs.  Parran,  et  al.  320. 

9.  The  trustees  appointed  by  decree  to  sell  real  property,  on  the  21st  June 

1841,  and  12th  October  1842,  offered  it  at  public  sale  without  success. 
A  minimum  price  was  then  agreed  on  by  the  parties,  and  the  property 
offered  at  private  sale,  without  avail.  The  trustees  and  parties  con. 
corned,  then  agreed  to  sell,  at  private  sale,  for  a  fixed  sum,  if  that 
could  be  obtained,  and  after  unusual  efforts,  a  purchaser  was  procured 
at  that  sum.  Under  such  circumstances,  as  the  Chancellor  would 
have  authorized  the  sale  in  the  absence  of  all  proof  to  impeach  it,  he 
properly  ratified  it,  though  one  of  the  parties  to  the  cause  objected  to 
it,  as  a  sacrifice  of  his  interest  Tyson  vs.  Mickle  et  al.,  376. 

10.  When  a  trustee  exercises  a  power,  which,  if  previously  applied  for, 

would  have  been  granted,  as  it  were,  as  a  matter  of  course,  a  court  of 
equity,  in  the  absence  of  proof  showing  the  inexpediency  and  injus- 
tice of  so  doing,  will  ratify  the  act  done,  in  the  same  manner  as  if  the 
requisite  authority  had  been  applied  for,  and  granted.  Ib, 

11.  The  report  of  a  sale  made  by  trustees  of  the  court,  and  their  answers  to 

a  petition  impeaching  their  sale,  must  be  credited,  until  over-ruled 
by  proof.     Ib. 

12.  Improvement  in  price,  arising  from  a  general  enhancement  in  value 

since  the  sale,  is  no  ground  for  setting  aside  a  sale  made  under  a  de- 
cree. Ib. 

13.  The  ratification  or  rejection  of  a  sale,  must  depend  on  the  state  of 

circumstances  existing  at  its  date,  not  on  subsequent  contingencies ; 
depreciation  of  property  is  at  the  risk  of  the  purchaser,  and  he  must 
reap  the  fruits  of  appreciation.  Ib. 

14.  If  there  is  any  error  in  proceedings  in  Chancery,  of  which  a  trus- 

tee has  any  right  to  complain,  he  may  have  appeal  therefrom. 
Richardson  vs.  the  State,  use  of  Rawhngs,  439. 

15.  It  is  the  duty  of  a  trustee,  acting  under  a  decree  for  a  sale,  as  soon  as 

an  order  has  passed  distributing  the  proceeds  thereof,  and  he  has  re. 
ceived  the  same,  either  to  pay  over  the  fund  to  the  party  directed  to 
bo  paid,  or  carry  the  same  into  court.  ///, 

16.  For  money  detained  against  such  duty,  the  jury  may  give  interest,  by 

way  of  damages.     76. 
See  COURT  OF  CHANCERY. 


INDEX.  549 

PRACTICE  IN  THE  COURT  OF  APPEALS. 

1.  Where  no  question  is  raised  upon  the  admissibility,  as  evidence  of  a 

paper  read  in  the  county  court  to  the  jury,  this  court,  under  the  act 
of  1825,  ch.  117,  will  not  consider  that  question  Hannon  tt.  al.  vs. 
the  State,  use  of  Robey  and  wife,  42. 

2.  This  court,  in  reviewing  the  judgments  of  the  county  courts,  cannot 

exercise  the  powers  of  a  court  of  probat  as  to  last  wills  and  testa- 
ments of  personal  property.  Ib. 

3.  When  the  orphans  court  admits  two  papers  of  different  dates  to  probat 

as  testamentary  instruments  of  the  same  party,  and  holds  that  one  is 
not  a  revocation  of  the  other,  this  court  will  presume  that  the  orphans 
court  acted  correctly,  and  not  disturb  their  judgment,  when  such 
papers  are  incidentally  offered  in  evidence.  Ib, 

4.  This  court,  in  affirming  the  decree  of  the  Court  of  Chancery,  will 

make  such  appropriate  additions  to  its  terms,  as  may  be  necessary 
to  secure  to  both  parties,  the  benefits,  advantages  and  prospective 
rights  for  which  they  mutually  stipulate,  in  relation  to  which  the 
decree  appealed  from  was  silent,  or  not  sufficiently  precise.  Ib. 

5.  Where  a  defendant  offers  in  evidence  collaterally,  proceedings  in 

ejectment,  and  the  plaintiff  prays  the  court  to  instruct  the  jury,  that 
they  do  not  vest  any  title  in  the  defendant,  and  are  no  bar  to  the 
plaintiff's  right,  such  a  prayer  is  not  too  general,  under  the  act  of 
1825,  ch.  117.  Walter  et  al.  vs.  Alexander  and  wife,  204. 

6.  This  court  must  assume,  under  such  a  prayer,  that  every  ground  which 

established  either  of  the  points  relied  on  in  it,  was  considered  and 
determined  by  the  county  court.  Ib. 

7.  An  appeal  will  not  lie  from  an  order  of  the  Orphans  court,  appointing 

a  guardian.     Compton  vs.  Compton,  241. 

8.  Upon  a  case  stated,  which  does  not  authorise  the  court  to  give  judg- 

ment for  either  party,  this  court  can  give  no  judgment,  but  must 
reverse  that  of  the  court  below,  and  remand  the  cause.  Burgess  vs. 
Pue,  254. 

9.  Where  repairs  done  to  a  carriage,  enured  to  the  benefit  of  a  third  per- 

son, who  in  fact,  took  it  to  be  repaired,  he  is  responsible  ;  and  where 
the  state  of  the  proof  enables  the  jury  to  regard  the  case  in  that  aspect, 
it  is  error  to  instruct  them  imperatively,  that  upon  finding  the  fact  of 
property  in  the  defendants,  and  repairs  made  with  their  knowledge 
and  approbation,  that  the  plaintiff  is  entitled  to  recover.  Rogers  and 
Marfield  vs.  Severson,  385. 

10.  The  motion,  to  direct  an  amendment  of  a  bill  of  particulars,  filed  in 

due  time,  made  after  plea,  pleaded  to  the  merits,  at  the  trial  term,  is 
addressed  to  the  sound  discretion  of  the  court ;  and  therefore  is  one 
from  which  an  appeal  does  not  lie,  any  more  than  it  will  on  a  refu- 
sal to  grant  a  new  trial.  Randall  vs.  Glenn,  430. 

11.  Under  the  act  of  1825,  ch.  117,  this  court  only  reviews  the  questions 

decided  by  the  county  court,  so  that,  where  evidence  is  given  with 
out  exception,  the  parties  cannot  object  to  its  admissibility  in  this 
court.  Phelan  $•  Bogue  vs.  Crosby,  462. 

12.  A  judgment  at  law  reversed,  without  prejudice.    Ib. 


550  INDEX. 

PRESUMPTION. 

See  EXECUTOR  AND  ADMINISTRATOR,  for,  of  law,  from  lapse  of  time,  1, 2,3. 
CONSTITUTIONAL  LAW,  7. 
CORPORATIONS,  2,  3. 
COURT  OF  CHANCERY,  16. 
EJECTMENT,  12,  13. 
ESTOPPEL,  6. 
LAND  OFFICE,  5. 
PRIMARY  SCHOOL,  12. 
RIPARIAN  PROPRIETOR,  3, 
TRUSTS — TRUSTEES,  1,  2,  3. 


1.  By  the  act  of  1828,  ch.  169,  sec.  5,  more  formal  objections  to  the  le- 

gality of  the  proceedings  of  the  meeting  of  the  inhabitants  or  trustees 
of  any  school  district  for  the  public  instruction  of  youth  in  primary 
schools,  or  irregularity  therein,  are  to  be  disregarded.  Burgess  vs. 
Pue,  11. 

2.  By  the  act  of  1825,  ch.  162,  sec.  8,  the  collector  of  the  school  tax  is 

to  be  appointed  by  the  taxable  inhabitants  of  the  district,  and  by 
the  llth  section  he  ii,  required  to  give  bond,  with  security,  to  the 
satisfaction  of  the  trustees,  for  the  faithful  discharge  of  his  official 
duties.  The  election  to  be  valid  must  be  made  by  the  taxable  in- 
habitants. Ib. 

3.  The  act  of  1839,  ch.  90,  makes  no  change  in  the  power  of  appoint- 

ing such  a  collector.     Ib. 

4.  A  collector  of  taxes  not  selected  by  competent  authority,  although 

he  gives  bond  for  the  discharge  of  his  duties,  has  no  legal  warrant 
to  act,  and  all  his  proceedings  are  tortious  and  unlawful.  Ib, 

5.  The  legislature  may  delegate  the  power  of  taxation  to  the  taxable 

inhabitants,  for  the  purpose  of  raising  a  fund  for  the  diffusion  of 
knowledge  and  the  support  of  primary  schools,  within  their  respec- 
tive school  districts.  Ib. 

6.  Grants  of  similar  powers  to  other  bodies,  for  political  purposes,  have 

been  coeval  with  the  Constitution  itself,  and  no  serious  doubts  have 
ever  been  entertained  of  their  validity.  II. 

7.  In  an  action  of  replevin,  brought  by  a  taxable  inhabitant  against  a  col- 

lector of  the  school  tax,  to  recover  property  seized  for  non-payment 
of  such  tax,  due  for  1843,  having  filed  his  affidavit  on  which  he  ob- 
tained the  writ,  affirming  that  the  property  had  been  unlawfully  taken 
by  such  collector,  he  cannot  maintain  that  the  school  district  is  disor- 
ganized, and  the  powers  of  the  taxables  suspended  by  reason  of  in- 
formalities in  the  proceedings  of  such  district,  for  the  year  1842. 

Ib.  254, 

8.  Nor  that  the  election  for  1843  was  void,  because  the  minutes  of  the  pro- 

ceedings of  the  taxables  did  not  state  every  thing  to  have  been  done, 
which  the  law  requires  to  be  done  ;  as,  that  the  election  should  be  by 
ballot.  It  is  not  necessary  that  the  mode  of  election  should  appear 
on  the  minutes,  nor  that  they  should  show  the  clerk  had  bonded.  Ib. 


INDEX.  551 

PRIMARY  SCHOOLS— Continued. 

9.  The  taxables  when  assembled,  may  vote  a  tax,  as  well  for  the  expenses 
for  the  current  year,  as  to  pay  arrearages  due  for  essential  expenses 
of  the  preceding  year.  Ib, 

10.  Notice  of  the  time  and  place  of  meeting  of  the  inhabitants,  to  autho- 

rise the  imposition  of  a  school  tax  under  the  act  of  1825,  should  be 
given.  lh. 

11.  In  such  an  action,  the  collector  nesd  not  offer  proof  of  his  qualification. 

He  is  an  officer  de facto,  and  in  the  absence  of  proof,  no  presumption 
is  to  be  made  against  his  qualification.  Ib. 

12.  The  act  of  1825,  does  not  forbid  the  appointment  of  one  of  the  trustees 

to  be  the  clerk  of  the  school  district.     Ib. 

13.  The  legislature  had  the  right  to  delegate  to  thqge  appointed  to  exercise 

them,  viz  :  the  taxable  inhabitants,  the  powers  given  by  the  act  of 
1825,  ch.  162.  The  individuals  to  whom  those  powers  were  delega- 
ted, ought  to  conform  to  the  provisions  of  the  law  under  which  they 
act;  but  the  minutes  of  their  proceedings  need  not  show  all  the  facts 
necessary  to  give  them  jurisdiction.  Governed  by  the  nature  of  the 
trust  conferred,  and  the  great  confidence  reposed  by  the  law  in  the 
judgment  of  such  inhabitants,  the  court  will  presume  any  thing 
which  the  law  requires  to  be  done,  to  be  rightly  done,  until  the  con- 
trary appears.  Ib. 

PRINCIPAL  AND  AGENT. 

1.  Gifts  procured  by  agents,  and  purchases  made  by  them  from  their  prin- 

cipals should  be  scrutinized  with  a  close  and  vigilant  suspicion. 
Brooke  et  al.  vs.  Berry,  83. 

2.  Conveyances  from  principal  to  agent,  and  the  circumstances  which 

will  infect  them  with  fraud,  considered,     Ib. 

3.  Agents  are  not  permitted    to  deal  validly  with  their  principals  in 

any  case,  except  where  there  is  the  most  entire  good  faith,  and  a 
full  disclosure  of  all  facts  and  circumstances,  and  an  absence  of  all 
undue  influence,  advantage,  or  imposition.  Ib. 

4.  Various  circumstances  in  relation  to  the  possession  and  ownership  of 

a  carriage  sent  to  a  mechanic  for  repairs,  stated,  and  considered, 
making  a  case  for  the  exclusive  consideration  of  the  jury,  whether 
the  repairs  were  made  by  the  authority  of  the  defendants.  Rogers 
cj-  Marfield  vs.  Sever  son,  385. 

5.  Unless  the  vendor  knows,  at  the  time  of  sale  of  chattels,  who  his  prin- 

cipal is,  and  notwithstanding  such  knowledge,  makes  the  agent  his 
debtor,  the  principal  is  not  discharged.  Henderson  vs.  Mayhew,  393. 

PRINCIPAL  AND  SURETY.     See  VENDOR  and  VENDEE,  2,  3, 4,  5. 

PURCHASER. 

1.  A  prominent  object  of  our  enrolment  laws  is,  the  protection  of  pur- 

chasers.    Addison  vs.  Hack,  221. 

2.  A  grant,  not  acknowledged  nor  recorded,  of  a  power  to  divert  the 

course  of  a  stream,  which  flowed  through  Uie  grantor's  land,  but 
which  power  had  not  been  executed,  would  not  be  a  bar  to  a.  subse- 
quent bonafidc  purchaser,  for  a  valuable  consideration,  without  no- 


552  INDEX. 

PURCHASER— Continued. 

tico,  claiming  the  water  right  naturally  incident  to  the  lands  he  had 
purchased.     To  interpose  such  a  bar,  in  such  a  case,  the  same  con- 
formity to  the  registry  laws  is  necessary,  as  if  land  were  the  subject 
of  the  grant.     Ib. 
See  WILL  AND  TESTAMENT,  3  to  9. 

RAIL  ROAD  CORPORATIONS. 

1.  After  a  rail  road  company  had  constructed  its  road  by  authority  of  law, 

through  the  plaintiff's  land,  condemned  for  that  object,  they  were  au- 
thorised to  alter  the  location  of  their  road  between  two  given  points  : 
they  re-constructed  the  road,  and  abandoned  that  part  which  had 
been  made  through  the  plaintiff's  land.  HELD:  that  the  authority  de- 
rived from  the  legislature  to  alter  the  location,  did  not  exempt  the 
company  from  liability  to  the  plaintiff'  for  the  loss  sustained  by  him  by 
reason  of  such  abandonment.  B.  $  S.  Rail  Road  Co.  vs.  Campion 
et  al,  20. 

2.  Where  a  rail  road  company  had  constructed  a  road,  then  abandoned  it 

in  part,  and  changed  the  location  pro  tanto,  a  plaintiff  through  whose 
land  the  road  originally  passed,  having  sustained  no  damage  or  injury 
in  fact,  by  the  alteration,  cannot  maintain  an  action  for  such  change 
of  location.  Ib. 

3.  An  inquisition  to  condemn  land  for  the  use  of  the  B.  and  S.  Rail 

Road  Company,  in  Baltimore  county,  out  of  the  limits  of  the  city 
of  Baltimore,  ought  not  to  be  held  upon  the  warrant  of  a  justice  of 
the  peace  appointed  for  said  city.  Per  Baltimore  county  court.  Ib. 

4.  Under  the  act  of  1827,  ch.  72,  resident  jurors  in  the  city  of  Balti. 

more  may  be  summoned  to  act  in  any  part  of  Baltimore  county.    Ib. 

5.  The  description  in  an  inquisition  of  land  condemned,  ought  to  be  suf- 

ficiently certain.  The  omission  to  insert  the  name  of  the  tract  is  not 
fatal.  A  description  is  sufficient  when  it  calls  lor  stones,  trees,  plant- 
ed boundaries,  fixed  objects,  or  where  it  takes  for  the  beginning  of 
the  land  intended  to  be  described,  any  spot  or  point  of  beginning  on 
land  either  conveyed  to  the  company  and  recorded,  or  on  land  there- 
tofore condemned  by  inquisition,  recorded,  Ib. 

6.  The  description  in  an  inquisition  beginning  for  the  land  condemned  at 

station  No.  147,  on  the  location  of  said  rail  road,  and  running  thence 
to  station  No.  170,  being  23  stations  of  100  feet  each  in  length,  and 
occupying  a  space  of  66  feet  in  width,  is  not  sufficiently  accurate  to 
authorise  its  ratification  Ib. 

7.  Under  the  charter  of  the  B.  and  S.  Rail  Road  Company,  the  inquisi- 

tion for  the  condemnation  of  land  should  state  that  it  was  for  the  con  - 
struction  of  the  road,  in  that  event  the  entire  interest  is  condemned.  Ib. 

8.  By  the  act  of  1831,  ch.  288,  the  Baltimore  and  Port  Deposit  R.  R.  Co. 

was  chartered,  to  construct  a  rail  road  from  B.  to  P.  D.  By  the 
act  of  same  year,  ch.  296,  the  Delaware  and  Maryland  R.  R.  Co. 
was  also  chartered,  to  construct  a  road  from  some  point  at  the  Dela- 
ware and  Maryland  line  to  P.  D.  By  the  act  of  1835,  ch.  293,  the 
D.  and  M.  Co.,  was  united  to  the  Wilmington  and  Susquchanna 


INDEX.  553 

RAIL  ROAD  CORPORATIONS— Continued. 

/?.  R.  Co.,  a  company  chartered  by  Delaware  under  that  name.  By 
the  act  of  1837,  ch.  30,  the  first  named  company  was  united  with  the 
W.  fy  S.  R.  R.  Co.,  under  the  name  of  the  Philadelphia,  Wilming- 
ton and  Baltimore  R.  R.  Co.  The  first  named  company  was  located 
in  Baltimore  and  Harford  counties ;  and  as  to  the  second,  which 
lies  in  Cecil  county,  Maryland,  "the  shares  of  the  capital  stock  of 
the  said  company  shall  be  deemed  and  considered  personal  estate, 
and  shall  be  exempt  from  the  imposition  of  any  tax  or  burthen  by 
the  State,  except  that  portion  of  the  permanent  and  fixed  works  of 
the  company,  within  the  State  of  Maryland,  and  that  any  tax  which 
shall  hereafter  be  levied  upon  said  section,  shall  not  exceed  the  rate 
of  any  general  tax,  which  may,  at  the  same  time,  be  imposed  upon 
similar  real  and  personal  estate,  within  this  State,  for  State  pur. 
poses."  HELD: 

1st.  That  the  shares  and  stock  of  the  D.  $  M.  R.  R.  Co.,  its 
works,  improvements,  profits,  and  machinery  of  transportation, 
except,  &c.,  were  exempted  from  all  taxation  or  levies,  whether 
for  county  or  State  purposes. 

2nd.  The  permanent  and  fixed  works  of  the  Company  remained 
subjects  of  taxation  or  assessment,  either  for  county  or  State 
purposes,  or  for  both  by  virtue  of  the  said  exception. 
3rd.  The  terms,  "that  any  tax,  which  shall  hereafter  be  levied, 
shall  not  exceed,"  &c.,  have  no  reference  to  taxes  or  assess- 
ments on  levies  for  county  purposes ;  it  relates,  exclusively,  to 
taxes  laid  for  State  purposes. 
4th.  The  powers,  &c.,  exemptions  conferred  by  the  act  of  1835, 

ch.  293,  as  to  county  taxes,  relate  to  Cecil  county. 
5th.  A  tax  laid  by  the  commissioners  of  Harford  courtty,  for 
county  purposes,  on  the  rails,  bed  of  the  rail  road,  and  other 
property  of  the  company,  connected  with  its  road  in  Harford 
county,  and  not  upon  the  cars  of  said  Company,  was  not  for- 
bidden by  the  charters  referred  to,  and  is  within  the  general  law 
relating  to  taxes.  The  P.  W.  $•  B.  Rail  Road  Co,  vs.  Bay- 
less,  355. 

REFERENCE.     See  ARBITRATION. 

RELATION.     See  LAND  OFFICE,  2,  for,  of  Patent  to  Survey. 
REMAINDER— VESTED  AND  CONTINGENT. 
See  MAXIMS,  3. 

WILL  AND  TESTAMENT,  3  to  9. 

REPLEVIN. 

1.  D  sued  out  a  writ  of  replevin,  and  gave  the  usual  bond,  with  the  other 
defendants  as  his  sureties,  to  J;  at  the  trial  of  die  replevin,  the  defen- 
dant J  pleaded  non  cepit,  and  property  in  S ;  and  the  plaintiff,  D, 
pleaded  property  in  himself.  The  issues  were  found  for  J,  with  a 
judgment  for  a  return  of  property.  In  an  action  on  the  replevin  bond' 
entered  for  the  use  of  S,  the  defendants,  D  and  his  sureties,  were 

70     v.2 


554  INDEX. 

REPLEVIN—  Continued. 

permitted  to  prove  in  mitigation  of  damages,  that  the  property  really 
belonged  to  S,  that  J  had  no  personal  interest  in  it ;  and  maintain, 
that  he  could  recover  in  this  action  only  the  amount  of  damage  sus- 
tained by  him,  personally,  in  consequence  of  the  property  being  taken 
from  his  possession,  and  could  not  increase  the  damages  to  the  extent 
of  <S's  right,  by  showing  that  he  was  her  agent.  Walter,  use  of  Wal- 
ter vs.  Warfield  et  al ,  216. 

2.  The  damages  which  an  obligee  in  a  replevin  bond  can  recover  from 
the  obligors,  are  only  such  as  he  has  suffered  personally,  by  reason 
of  the  institution  and  failure  of  the  action  of  replevin.  Ib. 

REPURCHASE.     See  ASSUMFSIT,  1. 
REVERSION.     See  RIPARIAN  PROPRIETOR. 

RIPARIAN  PROPRIETOR. 

1.  The  tenant  in  fee  of  a  lot  binding  on  the  basin  of  the  city  of  Baltimore, 
leased  the  same  for  a  term  of  years,  reserving  a  right  to  distrain  and 
re-enter;  and  granted  his  lessee  "the  exclusive  right  of  extending, 
not  exceeding,  &c.,  into  the  water,  any  and  every  part  of  said  lot 
which  fronted  the  basin,  provided  he  could  obtain  permission  for  that 
purpose,  from  the  Mayor  $-c.  of  Baltimore,  or  the  legislature  of  the 
State.  The  reversion  of  this  lot  was  sold  to  O,  who  recovered  the 
leased  premises  by  ejectment  for  non-payment  of  rent,  and  applied  to 
the  corporation  of  J5for  liberty  to  extend  the  lot  into  the  basin,  ac. 
cording  to  the  original  lease,  which  was  granted,  and  the  extension 
made.  HELD  : 

1st.  That  the  right  to  make  the  improvement,  and  it,  when  made, 

did  not  remain  in  the  heirs  of  the  first  tenant  in  fee,  who  leased  it. 

2nd.  By  the  sale  of  the  reversion  to  O,  all  the  right  of  the  original 

tenant  in  fee,  both  in  the  lot,  and  the  permission  to  extend  the 

same,  as  granted  by  the  lease,  vested  in  O. 

3rd.  By  the  forfeiture  of  the  lease,  consequent  upon  the  recovery  in 

ejectment,  no  right  reverted  to  the  first  tenant. 
4th.  That  if  the  lessee  had  made  the  improvement  under  the  per- 
mission  granted  by  his  lease,  the  lessor  and  his  assigns  could 
have  distrained  or  re-entered  upon  it,  as  upon  the  original  lot. 
The  City  of  Baltimore  vs.  White,  444. 

2.  The  permission  granted  by  the  Mayor  and  City  Council  of  Baltimore, 

to  extend  an  improvement  into  the  water,  to  an  owner  of  a  lot  adja- 
cent thereto,  is  not  within  our  registration  system.  Ib. 

3.  The  law  imputes  to  a  purchaser  knowledge  of  all  facts,  appearing  at 

the  time  of  his  purchase  upon  the  paper  or  record  evidence  of  title, 
which  it  was  necessary  for  him  to  inspect  to  ascertain  its  suffi- 
ciency. Ib. 

4.  So  the  purchaser  of  a  wharf  in  the  city  of  Baltimore,  erected  under  the 

authority  of  the  acts  of  1745,  1783,  and  1796,  though  bona  fide,  is 
affected  with  notice  of  the  permission  granted  to  build  it,  and  bound 
by  it.  Ib. 


INDEX.  555 

RIPARIAN  PROPRIETOR—  Continued. 

5.  Where  an  ordinance  was  passed,  granting  permission  to  build  a  wharf 

which  required  the  written  assent  of  the  applicant  for  such  permis- 
sion, and  it  appeared  that  he  erected  the  wharf,  the  law  will  presume 
such  written  assent,  and  the  grantor,  and  his  subsequent  assignees, 
will  be  estopped  from  denying  such  assent.  Ib, 

6.  The  means  by  which  a  wharf  is  erected,  under  the  act  of  1745,  in  the 

city  of  Baltimore,  and  appropriated  to  the  public  use,  form  a  part 
of  the  paper  title,  the  record  evidence,  which  must  be  resorted  to, 
and  examined,  to  trace  the  right  to  such  property;  no  patent  issues, 
but  the  title  must  conform  to  the  acts  of  1745,  ch.  9  ;  1783,  ch.  24  ; 
1796,  ch,  68 ;  and  the  ordinances  of  that  city.  Ib. 

7.  Under  the  acts  of  1783  and  1796,  the  Mayor  and  City  Council  of 

Baltimore  may  refuse  their  assent  to  the  erection  of  a  wharf,  or  may 
grant  it,  with  such  conditions,  limitations  and  restrictions,  as  they 
may  deem  most  beneficial  to  the  navigation,  and  use  of  the  port,  of 
that  city.  Ib. 

8.  Such  a  grant  upon  condition,  that  its  exterior  margin  shall  constitute 

a  public  wharf,  is  valid.     Its  dedication  to  the  public  use,  when 
erected,  may  be  required.     Ib. 
See  WHARFAGE  AND  WHARVES,  1,  2,  3,  4. 

RULES  OF  COURT. 

See  PRACTICE,  22,  23,  24. 
SALES  OF  GOODS,  &c. 

See  ASSUMPSIT. 

SHIPS  AND  SHIPPING. 

SALES  OF  REAL  PROPERTY  UNDER  DECREE. 
See  PRACTICE  IN  CHANCERY,  9,  10,  11,  12,  13. 
SHERIFF,  3,  4,  5,  6,  7. 

SALVAGE.     See  INSURANCE. 
SHERIFF. 

1.  A  sale  of  land  made  by  a  sheriff,  under  execution,  to  his  own  agent, 
is  not  necessarily  void  at  law.  It  is  voidable  for  fraud  in  fact. 
Isaac  and  wife's  lessee  vs.  Clarke,  1. 

2.  A  sheriff  who  has  made  a  levy  upon  personal  property,  under  a  writ 

of  fieri  facias,  in  good  faith  apprehending  danger  of  loss  by  reason 
of  the  conflicting  claims  made  upon  it,  is  entitled  to  have  the  title 
of  the  claimant  settled  in  equity,  and  be  protected  in  the  mean 
while  by  injunction.  Ridenour  et  al.  vs.  Keller,  134. 

3.  If  the  sheriff  give  time  to  a  purchaser  at  his  sale,  to  pay  the  purchase 

money,  without  the  assent  of  the  creditor,  the  latter  is  not  bound  by 
it.  Hardesty  vs.  Wilson,  481. 

4.  In  a  proceeding  in  equity  where  the  sheriff  is  no  party,  the  conduct 

of  that  officer  cannot  be  inquired  into.     Ib. 

5.  It  does  not  follow,  that  because  a  bidder  is  found  upon  an  offer  for  sale 

of  property,  levied  on  under  a  fi.  fa.,  and  he  makes  the  highest  bid, 
that  the  supposed  sale  to  him  discharges  so  much  of  the  debt.  Ib. 


556  INDEX. 

SHERIFF— Continued, 

6.  The  bidder  acquires  no  title  to  the  thing  purchased,  but  by  payment  of 

the  purchase  money,  and  if  he  fails  to  do  this  within  a  reasonable 
time,  a  re-sale  may  be  lawfully  made.  Ib. 

7.  The  seizure,  upon  afi.  fa.,  is  not  a  satisfaction  of  the  debt.     11. 
See  EXECUTION. 

BOND  OF  SHERIFF. 
SHIPS  AND  SHIPPING. 

1.  Underwriters  are  liable  for  a  loss,  the  proximate  cause  of  which,  is  one 

of  the  risks  enumerated  in  their  policy,  though  the  remote  cause  may 
be  traced  to  the  negligence  of  the  master  and  mariners.  Georgia  Ins. 
<$•  Trust  Co.  vs.  Dawson,  365. 

2.  The  liability  of  the  ship  owner  to  the  shipper  for  the  negligence  of  the 

master  and  crew,  cannot  avail  the  insurer  as  a  defence.  Upon  pay- 
ment of  the  damage,  the  insurer  may  be  subrogated  to  all  the  rights 
of  the  insured  against  the  person  answerable  for  bad  stowage  and 
dunnage.  Ib. 

3.  On  the  6th  October  1841,  B  executed  an  absolute  bill  ot  sale  to  M,  for 

a  vessel,  on  which,  on  the  8th  he  took  out  a  register  in  his  own  name, 
and  made  the  usual  oath  required  by  the  act  of  Congress.    On  the 
15th  November  1841,  B,  who  continued  in  possession,  chartered  the 
vessel  for  a  foreign  voyage,  to  H,  who  appointed  C  master,  and  he, 
in  November,  and  to  the  15th  December,  purchased  materials  for  her 
outfit,  by  B's  directions.   On  the  20th,  the  account  for  materials  was 
delivered  to  B.    On  the  19th  January  1842,  the  charter  party  made 
by  B,  was  assigned  and  delivered  by  him  to  M,  who  then  effected  in 
surance  on  the  vessel  and  freight,  after  an  enquiry  of  B,  of  the  nature 
and  particulars  of  the  voyage.     Upon  the  return  of  the  vessel,  in 
August  1842,  M  received  the  freight,  paid  the  port  charges,  for  the 
first  time  took  possession  of  her ;  in  November  sold  her,  and  received 
th  e  money ;  never  having  before  had  any  possession  and  control  of 
the  vessel.     In  an  action  brought  by  a  material  man  against  M, 
for  the  supplies  furnished  as  aforesaid,  HELD  : 
1st.  That  the  plaintiff's  were  not  entitled  to  recover,  upon  the  mere 
finding  of  the  fact  by  the  jury,  that  M  was  the  owner  of  the  ves- 
sel, at  the  time  the  articles  furnished  her,  were  sold  and  delivered. 
Nor  in  addition  to  the  fact  of  ownership,  as  aforesaid,  the  circum- 
stances, that  the  supplies  were  furnished,  and  that  M  received 
the  benefit  of  them.    Henderson  vs.  Mayhew,  393. 
2nd.  That  it  was  not  competent  for  M  to  show,  by  parol  proof, 
that  his  bill  of  sale  was  intended  to  be  a  mortgage ;  that  it  was 
so  designed  and  agreed,  between  him  and  B.     Ib. 
3rd.  It  was  not  competent,  to  either  plaintiff  or  defendant,  under 
the  circumstances  of  this  case,  by  any  form  of  prayer,  to  with- 
draw the  question  of  B's  agency  for  M,  in  procuring  materials 
for  the  ship,  from  the  consideration  of  the  jury.    Ib. 

4.  Where  there  was  evidence  offered,  that  M  was  the  owner  of  a  vessel 

at  the  time  she  was  furnished  with  supplies,  but  the  account  against 


INDEX.  557 

SHIPS  AND  SHIPPING— Continued, 

her  and  her  owner,  was  sent  to  B,  her  previous  owner,  for  payment, 
this  cannot  discharge  A/,  if,  but  for  this  proof,  he  would  have  been 
answerable.  Ib- 

5.  A  charter  party  granted  and  let  on  freight,  the  whole  tonnage  of  a 
vessel,  for  a  voyage  from  M.  V.  to  C.  C.,  and  thence  to  B.  When 
the  lading  at  C.  C.  was  completed,  she  was  to  depart  and  proceed 
to  B.,  where  the  cargo  was  to  be  discharged,  and  thus  end  the  voy. 
age.  In  consideration  of  which,  the  charterer  agreed  to  pay  the 
owners  a  gross  sum,  "payable  on  the  right  delivery  of  the  cargo  at 
B."  The  vessel  received  cargo  at  Af.  F.;  proceeded  to  C.  C.;  where 
a  part  was  landed,  and  a  part  of  the  cargo,  destined  to  B.,  shipped. 
At  this  time  she  was  forcibly  taken  possession  of  by  a  ship  of  war, 
and  carried  back,  by  force,  to  Af.  F.;  where  she  was,  after  some 
delay,  restored  to  her  master.  Under  such  circumstances,  the  char- 
ter party  did  not  impose  an  obligation  on  the  charterer  to  pay  the 
whole  freight  at  M.  F.,  as  if  the  vessel  had  proceeded  to  B.  The 
intent  of  the  charter  was,  that  a  full  and  complete  cargo  should  be 
received  at  C.  and  delivered  at  B.t  to  entitle  the  owner  to  full  freight ; 
the  charterer  being  in  no  default.  Charleston  Ins.  3f  Trust  Co.  »s, 
Corner,  410. 

SPECIAL  WARRANT.     See  LAND  OFFICE. 

SPECIFIC  PERFORMANCE. 

1.  A  defendant  cannot  exempt  himself  from  the  obligation  to  make  a 

conveyance  which  he  stipulated  to  make,  on  the  ground  that  he  has 
not  the  legal  title.  Jones  vs.  Belt,  106. 

2.  A  vendee,  against  whom  a  decree  for  specific  performance  of  a  con- 

tract of  purchase  is  sought,  may  object  to  the  want  of  title  in  his 
vendor,  as  insuperable  in  ordinary  cases.  Ib. 

3.  Ordinarily  Chancery  will  not  compel  a  purchaser  to  pay  the  purchase 

money  and  accept  a  defective  title.  But  a  vendor  has  no  interest 
in  setting  up  his  own  want  of  title.  Ib. 

SUBROGATION. 

See  VENDOR  AND  VENDEE,  2,  3,  4,  5. 
INSURANCE,  3. 

TAXES. 

1,  By  the  act  of  1831,  ch.  288,  the  Baltimore  and  Port  Deposit  R.  R.  Co. 
was  chartered,  to  construct  a  rail  road  from  B.  to  P.  D.  By  the 
act  of  same  year,  ch.  296,  the  Delaware  and  Maryland  R.  R.  Co. 
was  also  chartered,  to  construct  a  road  from  some  point  at  the  Dela- 
ware and  Maryland  line  to  P.  D.  By  the  act  of  1835,  ch.  293,  the 
D.  and  M.  Co.,  was  united  to  the  Wilmington  and  Susquehanna 
R.  R.  Co.,  a  company  chartered  by  Delaware  under  that  name.  By 
the  act  of  1837,  ch.  30,  the  first  named  company  was  united  with 
the  W.  $  S.  R.  R.  Co.,  under  the  name  of  the  Philadelphia,  Wil- 
mington and  Baltimore  R.  R.  Co.  The  first  named  company  was 
located  in  Baltimore  and  Harford  counties ;  and  as  to  the  second, 


558  INDEX. 

TAXES— Continued. 

which  lies  in  Cecil  county,  Maryland,  "the  shares  of  the  capital 
stock  of  the  said  company  shall  be  deemed  and  considered  personal 
estate,  and  shall  be  exempt  from  the  imposition  of  any  tax  or  bur- 
then by  the  State,  except  that  portion  of  the  permanent  and  fixed 
works  of  the  company,  within  the  State  of  Maryland,  and  that  any 
tax  which  shall  hereafter  be  levied  upon  said  section,  shall  not  ex- 
ceed the  rate  of  any  general  tax,  which  may,  at  the  same  time,  be 
imposed  upon  similar  real  and  personal  estate,  within  this  State, 
for  State  purposes."  HELD  : 

1st.  That  the  shares  and  stock  of  the  D.  $  M.  R.  R.  Co,,  its 
works,  improvements,  profits,  and  machinery  of  transportation, 
except,  &c.,  were  exempted  from  all  taxation  or  levies,  whether 
for  county  or  State  purposes. 

2nd.  The  permanent  and  fixed  works  of  the  Company  remained 
subjects  of  taxation  or  assessment,  either  for  county  or  State 
purposes,  or  for  both,  by  virtue  of  the  said  exception. 
3rd.   The  terms,  "that   any  tax,  which  shall  hereafter  be  levied, 
shall  not  exceed,"  &c.,  have  no  reference  to  taxes  or  assess- 
ments on  levies  for  county  purposes ;  it  relates,  exclusively,  to 
taxes  laid  for  State  purposes. 
4th.  The  powers,  &c.,  exemptions  conferred  by  the  act  of  1835, 

ch.  293,  as  to  county  taxes,  relate  to  Cecil  county. 
5th.  A  tax  laid  by  the  commissioners  of  Harfcrd  county,  for 
county  purposes,  on  the  rails,  bed  of  the  rail  road,  and  other 
property  of  the  company,  connected  with  its  road  in  Harford 
county,  and  not  upon  the  cars  of  said  Company,  was  not  for- 
bidden by  the  charters  referred  to,  and  is  within  the  general  law 
relating  to  taxes,  P.  W.  cf-  B.  Rail  Road  Co.  vs.  Bayless,  355. 

2.  By  the  act  of  1st  April  1841,  ch.  23,  imposing  a  direct  tax  of  twenty 

cents  in  the  hundred  dollars,  it  was  designed,  that  such  tax  should  be 
paid  into  the  treasury,  and  the  collector's  commissions,  by  the  coun- 
ties or  cities  respectively  making  the  levy,  by  an  additional  levy,  and 
not  by  the  treasury.  Seidenstricker  vs.  State,  374. 

3.  The  act  of  March  session  1841,  ch.  23,  provided  for  a  general  assess- 

ment of  all  the  real  and  personal  property  within  this  State,  and 
directed,  that  the  capital  stock  of  the  several  banks,  and  other  incor- 
porated institutions  of  the  State,  should  be  assessed  to  its  owners  at 
its  cash  value,  and  taxed  at  one-fourth  of  one  per  centum.  State 
vs.  Mayhew,  487. 

4.  All  the  property  of  such  banks,  &c.,  the  stock  of  which  was  thus 

assessed  and  taxed,  being  exempted  from  taxation,  the  taxation  of 
such  stock  is  constitutional.  lb. 

5.  To  relieve  the  proprietors  of  such  stock,  and  facilitate  the  collection 

of  the  tax  thus  imposed,  the  act  of  1843,  ch.  289,  made  it  the  duty 
of  the  president,  (or  other  proper  officer)  of  such  corporations,  semi- 
annually,  to  set  apart,  and  withhold  out  of  the  dividends,  or  profits, 
the  amount  of  the  tax  levied  on  such  stocks,  and  pay  the  same  to 
the  treasurer  of  the  State.  Ib, 


INDEX.  559 

TAXES— Continued. 

6.  The  act  of  1843,  is  a  legitimate  exercise  of  power,  incident  to  the 

sovereign  right  of  levying  taxes  for  the  support  of  government.    Ib. 

7.  By  the  act  of  1843,  the  place  and  mode  of  levying  and  collecting  such 

tax  are  changed ;  it  was  no  longer  collectable  where  the  stockhold- 
ers resided ;  it  ceased  to  be  a  debt  or  duty  chargeable  on  them  :  they 
were  exonerated  from  all  personal  liability  for  its  payment :  the  stock, 
itself,  stood  exempt  from  its  payment,  and  tho  security  of  the  State 
therefor,  became  contingent.  Ib. 

8.  For  the  recovery  of  such  tax,  the  State  has  no  lien  on  the  stock ;  can 

maintain  no  action  at  law,  either  against  the  stockholder,  bank,  or 
any  officer  of  the  bank  in  his  official  character  ;  nor  an  action  for 
money,  had  and  received  against  any  such  officer,  in  his  individual 
capacity.  Ib. 

9.  But  the  State  has  a  legal  right  to  be  paid  out  of  the  dividends  de- 

clared, or  profits  made,  the  amount  of  the  tax  on  the  assessed  value 
of  such  stock,  and  for  the  assertion  of  such  right,  having  no  appro- 
priate legal  remedy,  is  entitled  to  the  writ  of  mandamus  against 
the  president  or  other  proper  officer  of  anj  such  corporation.  Ib. 

10.  The  president  of  a  bank,  &c.,  is  not,  by  the  nature  of  the  duty  imposed 

upon  him,  by  tho  act  of  1843,  created  a  State  officer,  a  collector  of 
the  taxes  due  by  the  stockholders  of  the  bank.  Ib. 

11.  The  object  of  the  act  was  to  command  such  president,  ho  being  al* 

ready  in  possession  thereof,  to  pay  to  the  treasurer  of  the  State  the 
amount  of  State  taxes  in  his  hands,  which,  under-  the  act  of  1843, 
he  had  no  authority  to  pay  to  any  other  person.  Ib. 

12.  The  General  Assembly  has  the  right,  by  legislation,  to  impose  upon 

all  property  within  the  State,  a  just  and  proportionately  equal  public 
tax ;  to  provide  all  means,  details  necessary  for  its  speedy  collection, 
by  summary  process  of  execution,  or  other  reasonable  or  available 
means.  Hi. 

13.  A  power  exercised  by  the  General  Assembly,  from  the  adoption  of  our 

Constitution  till  the  present  time,  a  period  of  nearly  seventy  years, 
ought  to  be  deemed  almost  conclusive  evidence  of  its  possession  by 
that  body.  Ib. 

14.  A  cotemporaneous  construction  of  the  constitution  of  such  duration, 

continually  practised  under,  and  through  which,  many  rights  have 
been  acquired,  ought  not  to  be  shaken,  but  upon  the  ground  of  mani- 
fest error  and  cogent  necessity.  Ib. 

15.  Where  the  law  provided  for  the  valuation  of  bank  stock,  and  it  had 

been  valued  accordingly,  and  an  act  of  Assembly  prescribed  the 
rate  of  taxation,  and  directed  who  should  pay  it,  it  cannot  be  said 
that  the  tax  on  such  stock  has  not  been  levied :  it  is  a  legislative 
levy,  wholly  irrespective  of  the  ownership  of  the  stock.  Ib. 

16.  As  soon  as  a  dividend  is  declared,  the  right  of  tho  State  to  so  much 

of  it  as  is  required  to  be  paid  on  account  of  the  stock  taxed,  is  fixed 
and  indefeasible,  and  over-rides  all  other  liens,  claims  or  rights,  by 
whomsoever  asserted,  unless,  perhaps,  it  were  in  conflict  with  a 
preferred  claim  of  the  United  States.  Ib. 


560  INDEX. 

TAXES—  Continued. 

17.  A  citizen  is  not  necessarily  discharged  from  the  obligation  to  perform 
a  duty  enjoined  by  law,  for  the  public  good,  because  it  imposes  on 
him  some  additional  labor,  trouble  and  expense  ;  as  to  perform 
militia  duty,  vote  at  the  election  of  public  officers,  furnish  true 
statements  to  assessors,  obey  the  summons  of  executive  officers,  or 
arrest  felons :  in  these,  and  other  instances,  the  citizen  must  obey 
the  law.  ///. 

See  COLLECTORS  OF  COUNTY  LEVIES  AMD  TAXES. 
CONSTITUTIONAL  LAW,  1,  2. 

TENANT  BY  THE  CURTESY.  See  DOWER. 
TIME.  See  EXECUTOR  AND  ADMINISTRATOR,  4. 
TRESPASS— TRESPASSER. 

See  ACTION  ON  THE  CASE  5,  as  to,  ab  initio, 
PRACTICE,  20,  21. 

TRUSTS— TRUSTEES. 

1.  On  the  1st  February  1820,  B.  being  in  debt  on  judgment,  executed 
a  mortgage  of  his  lands  to  C,  to  secure  him  a  sum  due  on  bond.  On 
the  29th  of  the  same  month,  he  executed  a  second  mortgage  of  his 
lands  and  personal  property  to  W  and  M,  who  were  his  sureties  ;  and 
for  their  indemnity.  On  the  27th  July  following  he  executed  a  deed 
of  trust  for  the  property  mentioned  in  the  second  mortgage,  to  the 
same  grantees.  The  trust  was  to  sell  the  property,  as  speedily  as  it 
could  be'done  without  a  sacrifice,  and  pay  1st,  all  liens  and  incum- 
brances  according  to  their  priority  ;  and  2nd,  all  judgments  obtained 
against,  debts  or  liabilities  undertaken  by,  W  and  M  for  the  said  B. 
The  personal  property,  which  \\  as  under  execution,  was  sold  and  so 
applied.  The  land  was  not  sold  until  October  1821.  HELD  : 

1st.  That  as  the  trustees  were  not  obliged  to  sell  at  a  sacrifice,  by 
the  terms  of  the  deed  ;  the  depressed  price  of  lands  furnished  a 
sufficient  justification  to  them  for  forbearing  the  sale  for  the 
time  they  did  forbear. 

2nd.  That  at  the  sale  of  the  land,  which  was  by  virtue  of  an  ex- 
ecution, the  purchaser  was,  in  fact,  an  agent  of  one  of  the  trus- 
tees. 

3rd.  A  trustee  who  purchases  the  trust  property,  which  had  been 
previously  levied  on,  at  the  sheriff's  sale  under  the  writ,  being 
guilty  of  no  fraudulent  conduct  to  depress  the  price,  will  be  en- 
titled to  re-imbursement  of  his  expenditures,  but  cannot  deprive 
the  c.  q.  t.  of  the  benefit  of  his  purchase. 

4th.  The  circumstance  of  the  trustee  having  an  interest  coupled 
with  his  trust,  as  for  the  satisfaction  of  his  own  claims,  does 
not  dispense  with  the  equity,  that  all  his  acts  should  enure  in 
equal  proportions  to  the  benefit  of  others  according  to  the  extent 
of  their  claims,  as  well  as  to  himself.  Bell  et.  al.  vs.  Webb 
and  Mong,  163. 


INDEX.  561 

TRUSTS— TRUSTEES—Contfnwed. 

2.  Where  a  c.  q.  t.  attended  the  sale  of  trust  property,  under  an  execu- 

tion, by  a  judgment  creditor  of  the  grantor  of  the  fund,  was  re- 
quested to  bid,  and  did  not ;  nor  did  he  express  any  dissatisfaction 
therewith,  but  it  did  not  appear  that,  he  then,  or  at  any  subsequent 
time  until  the  filing  of  his  bill,  had  any  notice  or  knowledge,  that 
his  trustee,  through  an  agent,  was  the  purchaser,  there  is  no  ground 
to  impute  acquiescence  in  the  sale,  though  eighteen  years  had 
elapsed.  Ib. 

3.  In  such  a  case,  the  sale  is  voidable  at  the  election  of  the  c.  q,  t.     The 

land  remaining  in  the  possession  of  the  trustee,  at  the  institution 
of  the  suit,  may  be  sold,  and  the  purchase  money,  after  allowing 
the  trustee  all  the  money  by  him  paid  and  applied  to  the  purposes 
of  the  trust,  and  also  for  all  necessary  and  proper  ezpenditures  upon 
the  land,  and  permanent  improvements  thereon,  over  and  above  its 
profits,  shall  be  applied  to  the  purposes  of  the  trust.  It. 

4.  It  is  the  duty  of  a  trustee,  acting  under  a  decree  for  a  sale,  as  soon  aa 

an  order  has  passed  distributing  the  proceeds  thereof,  and  he  has  re. 
ceived  the  same,  either  to  pay  over  the  fund  to  the  party  directed  to 
be  paid,  or  carry  the  same  into  court.  Richardson  vs.  the  State, 
use  of  Rawlings,  439. 

5.  For  money  detained  against  such  duty,  the  jury  may  give  interest,  by 

way  of  damages.     Ib. 
See  PRACTICE  IN  CHANCERY,  9  to  13.    Sales  by  trustees  under  decree. 

USE  AND  OCCUPATION.    See  ASSUMPSIT,  I, 

VARIATION  OF  THE  COMPASS. 
See  EVIDENCE,  51. 

EJECTMENT,  14. 
VENDOR  AND  VENDEE. 

1.  P  sold  a  tract  of  land  to  T  for  $8000 ;  of  which,  $1000  was  secured 

by  the  vendee's  notes ;  $2000,  due  in  1841  and  1842,  secured  by  the 
vendee's  notes  with  W,  as  endorser;  and  the  balance  of  $5000,  due 
from  1843  to  1847,  secured  by  the  vendee's  notes  with  D  and  <S  as 
endorsers.  The  vendee  died  insolvent.  The  vendor  recovered  judg- 
ment, at  law,  against  W,  and  then  proceeded  in  equity  to  sell  the  land, 
which  he  purchased  in  at  $4000.  Upon  a  bill,  filed  by  W  to  compel 
P  to  apply  the  $4000  in  discharge  of  the  notes  first  due,  and  to  re- 
strain his  proceedings  at  law  upon  his  judgments,  HELD  :  that  the 
product  of  the  sale  should  be  so  applied,  under  the  direction  of  the 
Court  of  Chancery,  as  would  give  full  security  to  the  vendor,  which 
might  be  done  by  enquiring  into  the  pecuniary  condition  of  the  sure- 
ties. Welch  vs.  Parran  et  al.  320. 

2.  If  any  one  of  the  sureties  should  be  found  unable  to  pay,  then  the  ven- 

dor should  be  secured  by  applying  so  much  of  the  proceeds  of  sale,  as 
would  extinguish  the  note  thus  endangered.  Ib. 

o.  The  vendor  is  entitled  to  full  payment  from  the  one  security  or  the 
other;  or  if  one  is  insufficient,  from  the  additional  security.    The  en- 
dorsed notes  are  to  be  considered  as  additional  securities.    Ib, 
71     v.2 


562  INDEX. 

VENDOR  AND  VENDEE— Continued. 

4.  The  vendor  is  not  bound  to  wait,  during  the  time  occupied  in  ascertain- 

ing the  condition  of  the  securities,  but  as  the  notes  become  due  may 
enforce  them  at  law.     Ib. 

5.  Such  of  the  sureties  as  pay,  may  be  subrogated  to  the  rights  of  the  ven- 

dor, to  the  extent  of  any  interest  they  may  have  in  the  purchase 
money.    _Ib. 

See  SPECIFIC  PERFORMANCE. 
CONTRACT,  1. 
PURCHASER,  1. 

VOID— VOIDABLE. 

1.  M.  and  L.  rented  a  farm  from  Z.,  and  agreed  to  give  him  one  half  of 
all  the  grain  raised  on  it  as  a  rent  for  the  same,  and  on  the  8th  May 
1841,  they  executed  a  bill  of  sale  to  him  for  a  variety  of  chattels,  and 
also  for  all  their  "portion  of  grain  now  growing  on  his,  the  said 
Z'*  farm,  and  all  that  should  be  sown  or  planted,  each  succeeding 
year."     This  instrument  was  not  proved  to  have  been  recorded  under 
the  act  of  1729  ;  and  contained  a  warranty  of  title  by  the  grantors, 
and  a  declaration  of  a  delivery  of  part  of  the  goods,  &c.,  for  the 
whole.    In  the  fall  of  1841,  M.  and  L.  sowed  a  crop  of  wheat ;  and 
on  the  23rd  February  1842,  agreed  with  Z,  that  he  should  offer  the 
grain  in  the  ground  for  sale  for  his  own  use,  and  credit  them  with  its 
proceeds.     No  sale  having  in  fact  been  made,  E.  and  B.,  judgment 
creditors  of  M.  and  L  ,  who  were  still  in  the  occupancy  of  the  land, 
on  the  26th  February  1842,  levied  a  fieri  facias  on  the  growing 
grain  as  the  property  of  M.  and  L.;  and  sold  the  same  on  the  9th 
March,  under  the  writ.    The  purchaser  agreed  with  E.  and  B,  that 
his  liability  should  depend  on  the  question  whether  the  crop  belonged, 
of  right,  to  M.  and  L.     It  appeared  B.  had  a  knowledge  of  the  bill 
of  sale  of  May  1841,  but  not  until  after  the  grantors  thereof  became 
indebted  to  E,  and  B.,  though  before  they  issued  their  writ  of  fi. 
fa.     In  an  action  by  E.  and  B.,  against  the  purchaser  of  the  grain, 
to  recover  the  price  thereof,  the  County  court  refused  to  instruct  the 
jury  upon  the  prayer  of  the  defendant,  that  the  bill  of  sale  though 
invalid  as  a  grant,  yet,  as  a  covenant  between  the  parties,  was  effec- 
tual, and  would  entitle  Z.  to  hold  the  grain,  if  the  jury  should  believe 
that  he  had  paid  the  consideration  mentioned  therein,  and  the  plain, 
tiffs  had  notice  of  its  existence  anterior  to  issuing  their  writs,  and  Z. 
had  permission  before  their  issue  to  sell  the  grain  for  his  own  use. 
Upon  appeal  by  the  defendant,  the  exception  to  such  refusal  was 
abandoned.     Byer  vs.  Etnyre  and  Besorc,  150. 
See  CONTRACT,  6. 
FRAUD,  1. 
SHKRIFF,  1. 

TRUSTS — TRUSTEES,  1,  2,  3. 
WARRANT  OF  SURVEY.    See  LAND  OFFICE. 

WATER  COURSES. 

1.  As  to  diversion  of.    Addison  vs.  Hack,  221 . 


INDEX.  563 

WHARFAGE  AND  WHARVES  IN  THE  CITY  OF  BALTIMORE. 

1.  Under  the  acts  of  1783  and  1796,  the  Mayor  and  City  Council  of 

Baltimore  may  refuse  thoir  assent  to  the  erection  of  a  wharf,  or  may 
grant  it,  with  such  conditions,  limitations  and  restrictions,  as  they 
may  deem  most  beneficial  to  the  navigation,  and  use  of  the  port,  of 
that  city. .  City  of  Baltimore  vs.  White,  444. 

2.  Such  a  grant  upon  condition,  that  its  exterior  margin  shall  constitute 

a  public  wharf,  is  valid.  Its  dedication  to  the  public  use,  when 
erected,  may  be  required.  Ib. 

3.  The  collection  of  wharfage  upon  a  public  wharf,  is  a  fit  subject  for  State 

legislation.     75. 

4.  The  act  of  1827,  ch,  162,  sec.  4,  gives  the  M.  and  C,  C  of  Baltimore* 

the  right  to  charge  and  collect  wharfage  from  public  wharves,  and 
where  the  owner  of  a  lot  adjacent  to  such  a  wharf,  demands  and  re- 
ceives the  wharfage,  the  city  may  recover  the  amount  unlawfully  re- 
ceived, and  withheld  from  her,  by  Such  owner.     76. 
See  RIPARIAN  PROPRIETOR. 
WILL  AND  TESTAMENT. 

1.  Where  a  testator  devised  all  the  rest,  residue  and  remainder  of  his  es- 

tate unto  all  the  children  of  his  sister  and  his  late  brother,  that  are 
now  in  existence,  to  be  equally  divided  amongst  them  per  capita, 
share  and  share  alike,  one  of  his  nieces  alive  at  the  date  of  the  will, 
married,  and  died  before  the  testator.  The  sister  and  late  brother 
had  each  five  children  alive  at  the  date  of  the  will.  HELD  :  that  the 
surviving  husband  of  the  deceased  niece,  was  entitled  to  one-tenth 
of  the  testator's  personal  estate  in  the  hands  of  his  executor.  Aid. 
ridge,  ex'r  of  Higdon  vs.  Boswell,  37. 

2.  The  orphans  court  may  receive  evidence  of  an  error  in  the  date  of  a 

will  offered  for  probat.  Hnnon  tt.  al.  vs.  the  State,  use  of  Robey 
and  wife,  42. 

3.  M,  by  his  last  will,  devised  to  one  of  his  three  sisters,  certain  real 

estate  in  fee,  and  constituted  her  his  residuary  legatee,  and  devisee ; 
he  bequeathed  to  her  all  his  "money,  choses  in  action,  and  all  the  rest, 
residue,  and  remainder  of  my  (his)  property,  real,  personal  and  mix- 
ed, (not  hitherto  devised  or  bequeathed,)  of  which  I  am  now  pos. 
sessed,  or  of  which  I  may  be  possessed,  at  the  time  of  my  death,  to 
her,  her  heirs  and  assigns,  forever."  M  also  devised  real  and  person, 
al  estate,  in  trust,  for  his  other  two  sisters.  After  the  publication  of 
this  will,  the  testator  purchased  other  real  estate,  and  died  without 
republishing  it.  HELD,  that  the  two  sisters,  who  took  trust  estates, 
could  not  also  claim  as  heirs  at  law,  their  proportion  of  the  after  ac- 
quired estate ;  which,  in  this  case  the  testator  intended  to  pass  under 
the  residuary  clause.  McElfresh  adm'r  vs.  Schley  and  Barr,  181. 

4.  On  the  6th  August  1337,  J,  by  his  laot  will,  devised  his  sister  S  an 

annuity,  to  be  paid  by  his  executrix,  and  charged  the  same  on  the 
whole  of  his  real  estate.  After  a  devise  of  a  farm  to  his  wife,  for  her 
life,  he  bequeathed  the  same  "unto  the  eldest  male  heir  of  the  body 
of  his  brother  H,  and  the  heirs  and  assigns  of  such  male  heir,  if  he 


564  INDEX. 

WILL  AND  TESTAMENT— Continued. 

shall  live  to  attain  the  age  of  twenty-one  years ;"  and  for  want  of  such 
male  heir,  then  the  same  estate  should  descend  to  the  right  heirs  of  the 
testator.  The  testator  died  in  1837 ;  left  no  children,  but  a  widow, 
(the  devisee  for  life,)  wfio  died  in  1841,  a  sister  S,  of  the  whole  blood, 
and  his  brother  H,  of  the  half  blood,  still  alive,  who  has  a  son,  his 
eldest  male  child,  born  in  1838.  HELD  :  that  upon  the  death  of  the 
tenant  for  life,  in  1641,  living  H,  the  estate  descended  to  the  right 
heirs  of  the  testator,  his  sister  /S,  the  complainant  in  the  bill.  Mitchell 
vs.  Mitchell,  230. 

5.  One  cannot  take,  as  purchaser,  under  the  description  of  heir,  or  heir 

male  ;  unless,  when  the  estate  is  to  vest,  he  has,  by  the  death  of  his 
ancestor,  become  very  heir.  Ib. 

6.  This  is  the  general  rule,  subject  only  to  this  exception,  that  when  the 

intention  of  the  testator  can  be  made  clearly  to  appear  from  the  will, 
that  he  did  not  mean  the  words,  heir  or  heir  male,  to  be  used  in  their 
technical  sense,  then  the  popular  sense  shall  prevail.  Ib. 

7.  Prima  facie,  the  word  heir  must  be  taken  in  its  technical  sense,  as  a 

word  of  limitation.     Ib. 

8.  Every  contingent  remainder  must  vest  eo  instanti,  that  the  particular 

estate  determines.     Ib. 

9.  There  are  certain  principles  to  be  kept  in  view,  when  a  court  is  called 

upon  to  construe  a  will :  one  is,  and  the  most  material,  that  the  lean- 
ing should  be  towards  technical  words  in  their  technical  sense  ;  and 
only  suffering  themselves  to  adopt  another  meaning,  when  there  can 
be  no  reasonable  doubt,  from  the  context,  that  in  such  sense  the  tes- 
tator used  them  ;  and  that  he  could  not  have  used  them  in  their  known 
and  legal  sense.  Ib. 

10.  Where  a  will  devising  real  property  authorized  its  sale  upon  the  con- 
sent of  the  testator's  widow,  her  consent,  to  a  decree  for  the  sale,  is 
a  sufficient  compliance  with  the  requisition  of  the  will.     Tyson  vs. 
Mickle  et  al.,  376. 
See  DOWER. 

ELECTION  IN  EQUITY,  1  to  8. 
EXECUTOR  AND  ADMINISTRATOR,  4. 

WORK  AND  LABOR,     See  ASSUMPSIT,  5,  6. 
WRIT.    See  PRACTICE,  25,  26. 


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